Opinion
Docket No. 57318.
Decided January 20, 1982. Leave to appeal applied for.
Jaffe, Snider, Raitt Heuer, P.C. (by Thomas J. Tallerico and Brian G. Shannon), for Great Lakes Container Corporation.
Evans Luptak (by Andrew M. Barbas and Gordon S. Gold), for Anne Werney.
Before: R.B. BURNS, P.J., and BASHARA and M.F. CAVANAGH, JJ.
On October 26, 1977, the Oakland County Probate Court entered an order allowing several claims against the estate, including that of the appellee. More than three years later, appellee filed a motion to compel payment of its claim. The personal representative of the estate opposed this motion and then filed a motion for rehearing of the previous order which had allowed the claim. On April 2, 1981, the probate court entered an order denying the motion for rehearing as untimely filed and ordering the estate to immediately pay the claim in the amount provided in the previous order of October 26, 1977.
The appellant personal representative then filed with this Court a claim of appeal from the order of April 2, 1981, pursuant to 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". Since the order in question was entered in a decedent's estate, the issue is whether or not the order here involved was a "final" order and therefore appealable to this Court rather than the circuit court. The parties have filed separate briefs on the question of this Court's jurisdiction.
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, must be made on a case-by-case basis. In re Swanson Estate, 98 Mich. App. 347; 296 N.W.2d 256 (1980). The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter. Equitable Trust Co v Bankers Trust Co, 268 Mich. 394, 397-398; 256 N.W. 460 (1934), In re Swanson Estate, supra. The finality of each ruling or decision contained in the probate court order must be considered individually and can be determined only by an examination of the effect on the rights of the parties involved.
That provision of the order of April 2, 1981, which directed the estate to pay to appellee the amount specified in the order of October 26, 1977, did not decide the appellee's claim but rather held that the claim was allowed by the 1977 order and directed compliance with that order. Therefore, the order appealed from did not determine the substantive rights of the parties but enforced the previous determination made by the probate court. Therefore, this provision of the order appealed from is not a "final" order appealable as a matter of right to this Court pursuant to MCL 600.861; MSA 27A.861.
An order denying rehearing is not a "final" order but, rather, a post-judgment order which, in and of itself, is appealable by leave only. In re Humphrey Estate, 107 Mich. App. 778; 309 N.W.2d 722 (1981), In re Mitros Estate, 106 Mich. App. 271; 307 N.W.2d 471 (1981). Therefore, that portion of the order denying rehearing of the October 26, 1977, order was not a "final" order appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861.
This appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the circuit court for the County of Oakland, pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich. App. 341; 296 N.W.2d 254 (1980).
The appeal is dismissed.