
    UNIVERSALIST GENERAL CONVENTION v. VAN BUREN CIRCUIT JUDGE.
    Costs — Probate Appeals — Contested Cases — Discretion of Court.
    Where a probate appeal was voluntarily dismissed in circuit court, after the order of the circuit court had been reversed and the order of the probate court affirmed by the Supreme Court, the case was a “ contested case” within the purview of section 681,1 Comp. Laws, and it was within the discretion of the circuit court to deny costs to either party.
    Mandamus by the Universalist General Convention to compel JohnR. Carr, circuit judge of Van Burén county, to set aside an order denying costs.
    Submitted June 6, 1905.
    (Calendar No. 21,112.)
    Writ denied July 21, 1905.
    
      Lincoln H. Titus (William G. Howard, of counsel), for relator.
   Per Curiam.

The relator was the residuary legatee in the will of Ann Smith, deceased. From an order of the probate court of the county of Van Burén directing the payment of the residue of said estate to relator an appeal was taken to the circuit court by John Cook, one of the heirs of said Ann Smith, deceased. After this appeal was taken the case was tried in that circuit, and the order of the probate court reversed. The case was then reviewed in this court, and the judgment of the circuit court reversed. See Cook v. Universalist General Convention, 138 Mich. 157. Thereafter, on motion of defendant Cook, an order was entered in the circuit court for the county of Van Burén dismissing said appeal and denying costs to each party. Relator, under the claim that respondent had no discretion to deny its costs, asks a mandamus directing him to enter an order taxing the same against appellant Cook.

The issue in this case depends upon the proper construction of section 681, 1 Comp. Laws, which reads:

“ In all cases that shall be contested, either in the probate court or in the circuit court, such court may award costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.”

Relator claims that this statute properly construed has no application to the case at bar, because appellant voluntarily dismissed his appeal. In support of his contention, he relies upon Sherman v. Washtenaw Circuit Judge, 52 Mich. 474. There we held that the statute (section 930, 1 Comp. Laws) giving discretion to the circuit judge respecting costs “in all cases heard and determined on appeal ” from justice’s court had no application “to a case in which the plaintiff voluntarily discontinued his suit.” We do not think that case controlling. On appeal from justice’s court the circuit court has no discretion respecting costs unless the case is “heard and determined.” On appeal from probate court the circuit court has discretion “ in all cases that shall be contested.” This language does not justify our holding — as we must to uphold relator’s contention — that this discretion may not be invoked until the contest has resulted in a final determination. In the case at bar the appeal was contested within the meaning of the statute, and therefore respondent acted within the limits of his discretion in making the order complained of.

The mandamus asked for should be denied.  