In Re McCullough

370 Mich. 517 (1963)

122 N.W.2d 678

In re McCULLOUGH.

Calendar No. 42, Docket No. 49,860.

Supreme Court of Michigan.

Decided July 17, 1963.

Craig Thompson, for petitioner.

Samuel H. Olsen, Prosecuting Attorney, Aloysius J. Suchy, George H. Cross, and Gary R. La Bret, Assistant Prosecuting Attorneys, for Probate Court for the County of Wayne, Juvenile Division.

SOURIS, J.

Appellant, a divorcee, is the mother of 3 minor children, presently of the ages of 11, 13, and 15 years. In January of 1956 the children were placed by appellant in a Salvation Army home. A petition was filed in 1958 in the juvenile division of the Wayne county probate court charging appellant with neglect of the children, and early in 1959 an order was entered after hearing making all 3 children temporary wards of the court. Later that year the youngest child was made a permanent ward of the court after hearing, but that order was subsequently set aside for procedural irregularities. In July of 1960 after another hearing the youngest child was again made a permanent ward of the court, thereby terminating appellant's parental rights to the child,[1] and the 2 older children were ordered continued as temporary wards of the court. There were other hearings in 1959 and 1960 on appellant's petition *519 for restoration of custody, but in each instance relief was denied to her. Following denial of her petition for rehearing of the July, 1960, order, and having failed to take timely appeal therefrom to the circuit court,[2] appellant filed in the circuit court in May of 1961 an application for leave to take delayed appeal from such probate order.[3] Following a hearing thereon at which testimony apparently was taken, Judge McCree of the Wayne circuit denied leave to appeal and subsequently in December of 1961 Judge McCree's successor, Judge Canham, denied a motion for rehearing after taking additional testimony thereon. Appellant thereupon filed in this Court a claim of appeal in January of 1962.

The application for leave to take delayed appeal from the probate order does not set forth any of the "substance of the record and proceedings" in the probate court, as was then required by our Court Rule No 75, § 7 (1945), as amended (326 Mich xl), nor does it show "by affidavit or otherwise that there is merit" in the attempted appeal as provided by Court Rule No 75, § 6(d) (1945), as amended, or that "justice requires a revision of the case" as provided by CL 1948, § 701.43 (Stat Ann 1962 Rev § 27.3178 [43]). As a matter of fact, the allegations contained in the application filed in the circuit court relate only to appellant's claimed ability then to provide a suitable home for her children; there are no allegations denying that she had neglected her children nor even challenging the sufficiency of the evidence from which the probate judge made such finding. If these deficiencies were sought to be corrected by the testimony offered in circuit court and accepted by Judges McCree and Canham, we are not favored with *520 a transcript of such testimony from which we could review their determinations.

When our jurisdiction is invoked properly on appeal from a circuit judge's grant or denial of the right to take a delayed appeal from the probate court, the appeal before us is by mandamus to review the circuit judge's exercise of his judicial discretion in passing upon the showing made and any answer thereto. Sanborn v. Circuit Judge, 94 Mich 519; Schmid v. Wayne Circuit Judge, 298 Mich 499; and In re Gillespie Estate, 348 Mich 256. The application filed with the circuit court was fatally defective on its face for failure to comply with the mentioned requirements of the cited court rules and statute and for failure to allege even that the probate judge's challenged finding of neglect was erroneous. Had Judge McCree denied the application summarily, appellant would have had no basis for appeal. Instead, however, he took testimony, as did Judge Canham on rehearing, and still found no merit in the attempted appeal. Absent such testimony from this record, there is nothing before us from which we can judge what was done below. For this reason we conclude that the appeal must be dismissed.

We have examined carefully the entire record for a reviewable question and find none. Had appellee challenged the appellant's right to appeal by claim of right, we would have planted decision of dismissal upon appellant's failure to obtain from this Court leave to appeal as was required by former Court Rule No 60, § 1(b) (1945), as amended (364 Mich xiv) in all cases where the remedy of review is by mandamus.

Appeal dismissed. Costs may be taxed by appellee.

CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, SMITH, and O'HARA, JJ., concurred.

[1] Subject of course to the powers of rehearing and of supplemental orders chapter 12A, as last amended by PA 1959, No 184 (CL 1948 and CLS 1956, § 712 A. 1 et seq. [Stat Ann 1943 Rev and Stat Ann 1959 Cum Supp § 27.3178 (598.1) et seq.]) provides.

[2] Court Rule No 75, § 2 (1945), as amended (326 Mich xxxviii), and CL 1948, § 712 A. 22 (Stat Ann 1962 Rev § 27.3178[598.22]).

[3] Court Rule No 75, § 6 (1945), as amended (326 Mich xl), and CL 1948, § 701.43 (Stat Ann 1962 Rev § 27.3178[43]).