Opinion
Calendar No. 48,732.
Decided December 1, 1961. Stricken from call of April term sua sponte and appeal dismissed conditionally May 2, 1961.
Appeal from Wayne; Rashid (Joseph G.), J. (Calendar No. 48,732.) Stricken from call of April term sua sponte and appeal dismissed conditionally May 2, 1961. Resubmitted July 1, 1961. Decided December 1, 1961.
For statement of case, parties, and other proceedings see Harvey v. Lewis, 363 Mich. 232.
Objection by plaintiffs to allowance of fees of guardian ad litem to represent known, unknown, incompetent, and contingent parties. Order allowing fees to Ralph W. McKenney, guardian. Plaintiffs appeal. Affirmed.
Walter M. Nelson ( Burger Sullivan and Frank Iannelli, of counsel for Harvey and McAlonan, Clarence T. Wilson, of counsel for Henkle, Moist, and others), for plaintiffs.
Ralph W. McKenney, guardian ad litem, in propria persona.
Refer to Harvey v. Lewis, 357 Mich. 305, handed down October 12, 1959. On that occasion a final decree was finally entered by this Court. For details, see pages 312-315 of report. Since then, and to the date of this writing, 21 appeals from subsequent orders in the cause have been brought here, all claimed of right. Some of these appeals we have dismissed on motion. As to some others we have denied motions to dismiss. Still others await judicial disposition.
All such motions have assigned want of application and grant of leave. In each instance I have agreed with the moving party or parties. My reasons appear in Detroit Trust Co. v. Blakely, 359 Mich. 621, in which some of the above-mentioned appeals — and dismissals thereof — were considered.
That was in June of 1960. Now we have more — many more. Here is the record of what counsel have persisted in bringing to this Court, since Harvey v. Lewis came to decree above, without submission of 1 or more applications for leave:
Date of filing of claim of appeal, Calendar No. with Supreme Court clerk
48,040 November 7, 1958 48,041 November 7, 1958 48,042 November 7, 1958 48,162 February 25, 1959 48,163 February 25, 1959 48,164 February 25, 1959 48,279 May 27, 1959 48,332 June 22, 1959 48,336 June 25, 1959 48,376 July 21, 1959 48,728 April 15, 1960 48,729 April 15, 1960 48,730 April 15, 1960 48,731 April 15, 1960 48,732 April 15, 1960 48,785 June 3, 1960 48,793 June 8, 1960 49,055 December 15, 1960 49,399 July 8, 1961 49,400 July 8, 1961 49,401 July 8, 1961
Final decree determining the issues presented by original pleadings having been entered and affirmed, no one of the above matters was or is appealable of right, the present one included. The latter appeal is from an order (entered April 1, 1960) which determined the amount of the duly appointed guardian ad litem's fees (and disbursements) and directed payment thereof by the receiver. The matter so determined was one of amount to be allowed, rather than one of right to be paid some amount. It was addressed to judicial discretion; discretion which is reviewable as of yore solely by proceedings in the nature of mandamus.
I would dismiss the appeal, with an award of costs (to the guardian ad litem) against plaintiffs and appellants.
To eliminate preparation and consideration of a possible application for leave to take delayed appeal from the order of April 1, 1960, the following should be added:
The guardian ad litem applied to Judge Rashid for an allowance of fees aggregating $20,000 in amount. He submitted testimony which, so far as the second-hand worth of print fairly discloses, may well have justified an award of that amount. Judge Rashid, understandably conservative as he proceeded to appraise the worth of such services, determined to award $10,000 only therefor. I find here no abuse of discretion and no occasion for suggesting or directing entry of some new order for a greater or lesser amount.
The order appealed from should be affirmed. The record presented on appeal indicates no abuse of discretion in the making of the appointment or the setting of the disputed fee.
Affirmed.
DETHMERS, C.J., and CARR, KELLY, KAVANAGH, and SOURIS, JJ., concurred with EDWARDS, J.
OTIS M. SMITH, J., took no part in the decision of this case.