We have also had occasion to review the power of the probate court in the recent case of Brooks v. Hargrave, supra, where it was said:

"There can be no question that the probate court assumed jurisdiction of the subject-matter in controversy when the will was admitted to probate and the defendant qualified as executor. It does not lose jurisdiction until the estate is finally closed. Having assumed jurisdiction, it has exclusive jurisdiction and no other court, save an appellate one which subsequently assumes to act in the matter, should proceed further when the priority of jurisdiction is called to its attention. E. T. Barnum Wire & Iron Works v. Speed, 59 Mich. 272 (26 N. W. 802, 805).”

A somewhat similar situation was presented to the court in Knapp v. Knapp, 95 Mich. 474, where a case was brought by an heir to enforce the provisions of a separation agreement and to enjoin the widow from claiming a distributive share in her husband's personal property. In that case Chief Justice HOOKER, speaking for the court, said:

"Without saying that equity cannot entertain such a case as this, we feel that there is little excuse for bringing it here. Our law (3 How. Stat. § 5964) gives to probate courts the authority to make decrees assigning estates to those by law entitled to the same. This would seem to confer the power to adjudicate between contesting claimants, as was done in the case of Jenks v. Trowbridge's Estate, 48 Mich. 94. In the present case the complainant's bill asks a decree denying to the defendant a hearing in the forum expressly provided by law for such cases."

See, also, Parkinson v. Parkinson, 139 Mich. 530.

I am of the opinion that the trial judge should have dismissed the bill of complaint on the ground that the chancery court had no jurisdiction to proceed, as the probate court had already assumed jurisdiction with reference to the subject-matter in controversy. The decree of the lower court will be reversed and

a decree entered dismissing the bill of complaint, with costs to the appellant.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, and STONE, JJ., concurred with KUHN, J.

FELLOWS, J. (dissenting). I think it is now too late to deny the jurisdiction of a court of equity to entertain a bill filed for the specific performance of a contract entered into by husband and wife. See Dakin v. Dakin, 97 Mich. 284; Thompson v. TuckerOsborn, 111 Mich. 470; Carr v. Lyle, 126 Mich. 655; Kundinger v. Kundinger, 150 Mich. 630; Phillips v. Phillips, 83 Mich. 259; Koch v. Koch, 126 Mich. 187; Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596, 16 Am. St. Rep. 528).

I think the decree should be affirmed.

GAMBLE v. OCEANA CIRCUIT JUDGE.

EXCEPTIONS, BILL OF NEW TRIAL-EXTENSION OF TIME-JURISDICTION-DISCRETION.

Where the trial court lacked jurisdiction, under section 12634, 3 Comp. Laws 1915, to further extend time in which to settle a bill of exceptions or move for new trial, his denial of same on the exercise of his best judgment and judicial discretion will not be interfered with by this court.

Mandamus by Joseph E. Gamble to compel John Vanderwerp, circuit judge of Oceana county, to extend the time to settle a bill of exceptions. Submitted October 8, 1918. (Calendar No. 28,380.) Writ denied December 27, 1918.

F. E. Wetmore, for plaintiff.

Alex. Sutherland (C. N. Sessions, of counsel), for defendant.

STEERE, J. Plaintiff seeks by mandamus to compel the circuit judge of Oceana county to further extend the time in which to settle a bill of exceptions or move for a new trial in a civil case entitled Francis W. Fincher, Executor, v. Joseph E. Gamble, wherein judgment was rendered against defendant, October 17, 1917, upon a promissory note given by him to Charles Jensen, deceased, for the amount of said note and interest. Charles Jensen died testate leaving all his property, both real and personal, to his wife, Anna Jensen, who thereafter died testate bequeathing her estate to Lewis Jensen, Annie Gamble (defendant's wife), and Maggie Gulumbo. Fincher brought this action.

Certain phases of the litigation were before this court in Jensen v. Gamble, 191 Mich. 233, and Jensen v. Oceana Circuit Judge, 194 Mich. 405. In the firstmentioned case Lewis Jensen had sued defendant to recover his undivided one-third of this note and defendant interposed the objection that a cause of action based on the note could not be thus split, which the trial court overruled and on appeal by defendant from a judgment against him for plaintiff's third of the amount of the note this court held that the note for one stated sum of money presented a single cause of action which could not be split, since there can be but one action on a single demand; but further stated in the opinion, against plaintiff's contention, there was no other way in which the rights of plaintiff and defendant could be determined when owners of the remaining interests in the note refused to join as plaintiffs, that the executor or administrator de bonis non of the testator's estate could bring an action on

the note and reversed the case without a new trial, whereupon this action followed.

At conclusion of the trial defendant obtained an order granting him 20 days in which to move for a new trial or settle a bill of exceptions, with a stay of proceedings and a further extension of 60 days on condition that a bond in the sum of $10,000 be filed within the 20 days. Defendant's counsel thereupon in the presence of the court and opposing counsel ordered a transcript of the testimony from the court stenographer, who then stated he would furnish the same as soon as possible thereafter, which appears to have been accepted as a substitute for the certificate of the stenographer required by section 62, chapter 18, of the judicature act (3 Comp. Laws 1915, § 12634). The bond provided for in said order was not filed.

The judgment was entered and this order extending time was made on October 17, 1917. No further application was made to the court until February 9, 1918, when defendant filed a motion for a new trial and served the same on opposing counsel two days later. On February 13, 1918, plaintiff filed a motion to strike defendant's motion for a new trial from the files on various grounds, amongst which were that no bond had been filed as required by order of the court, no order or application for an extension of time had been made beyond the original 80 days granted, which expired January 5, 1918, although the court stenographer had furnished defendant's counsel a transcript of the testimony on December 10, 1917.

Upon submission of this motion to the court on February 13th by consent of counsel they were given 10 days from February 14, 1918, to file briefs, and on March 18, 1918, the court made an order granting plaintiff's motion to strike defendant's motion from the files.

On March 21st defendant filed a motion asking that

the time in which to file a motion for a new trial or settle a bill of exceptions, etc., be extended. This motion was noticed for hearing on the 8th day of April following, which was the first day of the next ensuing term of court in that county. The motion was supported by affidavit stating as reason therefor that upon the 15th of December, 1917, shortly after receiving a transcript of the testimony from the stenographer and before completing the preparation of a bill of exceptions, counsel began assisting military registrants in filling out their questionnaires and devoting his time almost exclusively to that patriotic service until the 4th of February following. Counter affidavits were filed by plaintiff showing that the court was in session on the 2d day of January, 1918, at which time defendant's counsel attended and obtained a decree of divorce for a client, and again on the 22d, 23d and 24th days of January, 1918, during which time defendant's counsel attended court and obtained a decree of divorce for another client and participated in a contested equity case involving the construction of a will.

Respondent's return, amongst other things, points out that no bond was ever filed by defendant in compliance with the order extending time and "a certificate of the stenographer was never made and filed as required by the judicature act"; avers in relation to defendant's claim his time was devoted to assisting registrants in preparing their questionnaires, "that the attorney for relator took such time during that period as he thought was necessary to attend to his pressing private and professional affairs"; stated "the 2d day of January, 1918, was the first day of the January term of said court and that attorney for the relator appeared before the court and took such time as he thought was necessary to present his proofs to obtain and did obtain a decree of divorce in the case