(dissenting). On February 15, 1954, defendants filed a petition for a writ of certiorari. The writ was issued and later quashed. The order quashing the writ was entered on. October 22, 1954. Defendants filed a claim of appeal to the Supreme Court without first having obtained leave. Subsequently, plaintiff filed a motion to dismiss .defendants’ appeal, for the reason that leave to appeal had not been obtained. Without deciding the motion, we entered an order holding the motion in abeyance until the cause could be heard on its merits.
Bule No 60 of the Michigan Court Buies (1945) provides, in part:
“Sec. 1. Leave to appeal to the Supreme Court shall be required in the following eases: * * *
“(b) Where the remedy of review, under statute, or, in the absence of statute, under t common law, is by certiorari, mandamus or other' discretionary writ; or ease made unless the controversy involves more than $500.”
We have had occasion to discuss the effect of this rule in a mandamus case. In Quail v. Cole, 260 Mich 642, 643, we said:
“Leave to prosecute an appeal in the nature of mandamus was necessary and was not obtained. We, therefore, sua sponte, dismiss the appeal.”
*96In In re Application of Consolidated Freight Co., 265 Mich 340, 353 (4 PUR NS 397), we said:
“It should be noted that the appeal in the nature of certiorari was taken without first having obtained leave. Court Rule No 60 (1931). For that reason the appeal might well have been dismissed by the court on its own motion. Quail v. Cole, 260 Mich 642.”
Mr. Justice Carr relies upon and quotes from section 1 of Court Rule No 55 in support of his theory that circuit court judgments in certiorari proceedings to review the acts of a drain commissioner under the drain code are applicable as a matter of right. My interpretation of Rule No 55 is that it neither extends nor abridges the right of appeal. Such rights are governed by statute or rules. Rule No 60 provides that in certiorari proceedings leave to appeal must first be obtained before the cause can be decided in the Supreme Court. I find no exception in Rule No 60 exempting drain cases from the effect of the rule. I am not impressed with Mr. Justice Carr’s theory that acquiescence or our failure to sua sponte raise the question in In re Hurd-Marvin Brain, 331 Mich 504; and In re Lampson-Run & McIlwain Drains, 332 Mich 553, should control the issue of right to appeal that is now before us.
The motion to dismiss the appeal was timely made and should be granted, with costs to plaintiff.
Smith and Boyles, JJ., concurred with Sharpe, J. The late Justice Reid took no part in the decision of this case.