Opinion
Calendar No. 42,241.
Decided May 18, 1943.
Appeal from Kent; Brown (William B.), J. Submitted January 12, 1943. (Calendar No. 42,241.) Decided May 18, 1943.
Petition by Joseph Kurant, guardian of the estate of Joseph Svitojus, mentally incompetent, and Frank D. McKay for a writ of mandamus to compel Clark E. Higbee, Probate Judge for Kent County, to set aside an order. Writ granted. Defendant reviews by appeal in the nature of certiorari. Affirmed.
John M. Dunham, for plaintiffs.
Olis, Vasalle Lapinskas and Fred P. Geib, for defendant.
Litigation involving the Svitojus estate has been before the court in Svitojus v. Kurant, 293 Mich. 291, In re Svitojus' Estate, 296 Mich. 19, and Smolenski v. Kent Probate Judge, 301 Mich. 8. For a full understanding of the background of this action, we refer to the opinions containing over 90 pages in those cases. In the present case certiorari is sought to review and have vacated an order of mandamus of the Kent circuit court directing Clark E. Higbee, judge of probate for the county of Kent, to vacate an order made on April 11, 1941, in the matter of the estate of Joseph Svitojus, incompetent, holding null and void an order of Judge Dalton of the probate court, dated November 30, 1930, approving the final account of the guardian, Joseph Kurant, in that estate and an order of Judge Dalton dated January 27, 1931, exonerating and acquitting said guardian and canceling his bond of $10,000 given by Frank D. McKay as sole surety. Judge Higbee annulled these orders of an associate judge of his court upon a rehearing after his denial of a previous petition seeking such annulment. He did so on the ground that Judge Dalton who entered the orders was disqualified by reason of his relationship to a party in interest, the surety on the guardian's bond. Judge Higbee also vacated an order of September 10, 1935, made by Judge Dalton, authorizing John J. Smolenski, administrator of the estate of Joseph Svitojus, deceased, to settle and compromise a claim of the estate amounting to approximately $10,000 against Ernest Buffin and Elnora Buffin, land-contract purchasers of certain property conveyed by McKay to Kurant, for $3,069. That order of Judge Dalton was upheld in Smolenski v. Kent Probate Judge, supra, wherein, in an opinion by the majority of the court, we decided that neither the guardian nor the surety had any connection with the administration proceedings in the estate of Svitojus, deceased, and that the order of vacation of Judge Higbee was void under the statute, 3 Comp. Laws 1929, § 15519; Act No. 288, chap. 1, § 19, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1[19], Stat. Ann. 1940 Cum. Supp. § 27.3178[19]), which then required a petition for rehearing in the probate court to be filed within 90 days from the date of the order of which reconsideration is sought. Appellant seeks to distinguish that case on the ground that we held merely that Judge Higbee had no power to set aside a valid order of a fellow probate judge in a case in which the incompetent's estate was not involved. He contends that in the case at bar, the orders of Judge Dalton in 1930 and 1931 were in the incompetent's estate, and therefore void because of the judge's relation to the surety on the guardian's bond, and that they can be set aside at any time. We do not agree with appellant's contention.
Judge Higbee concluded that the orders in question were void because Judge Dalton, who made them, was the brother-in-law of the surety on the bond of the guardian. But the claim of disqualification had already been decided adversely to the heirs of decedent in the opinion of Mr. Justice NORTH in Svitojus v. Kurant, supra (p. 303), that it was barred by laches. In effect, this decision validated Judge Dalton's orders so that Judge Higbee was in error in setting them aside, even if, as appellant claims, he otherwise would have had the power to do so. The order of September 10, 1935, was valid because Judge Dalton was qualified. The other orders were valid because, while Judge Dalton may have been disqualified, we held that their invalidity was not asserted in time. The result, in either situation, is the same. Thus when the orders of November 30, 1930, and January 27, 1931, were assailed before Judge Higbee, he was bound by prior litigation to treat them as valid.
Even if Judge Dalton's orders were void, however, Judge Higbee had no power to set them aside. While there are instances in which void orders of a probate judge have been vacated beyond the statutory period ( In re Ryan, 291 Mich. 673; In re Gordon, 301 Mich. 224), in none of them were such orders vacated by a fellow probate judge. In the exercise of its general jurisdiction a court of equity may grant relief from certain probate orders ( Lane v. Wood, 259 Mich. 266; Lothrop v. Duffield, 134 Mich. 485), but no such general power inheres in probate courts whose jurisdiction is governed entirely by statute. It was in recognition of this principle that Svitojus' heirs on May 27, 1938, started suit in the circuit court of Kent county, in chancery. In their amended bill of complaint therein, they claimed that they were without remedy in the probate court by reason of the statutory limitations upon the power of the probate court to set aside, vacate, or annul the orders of that court after the lapse of time fixed by statute. Having thus invoked the jurisdiction of equity because of the lack of available relief in the probate court, they cannot now be heard to say that the probate court was always the proper forum. If the heirs were dissatisfied with the original orders, they should have taken action in the probate court within the statutory period. If their knowledge of the disqualification came after the probate court lost jurisdiction and time for appeal had expired, they should have sought equitable relief at once. They had timely notice of the various acts of the guardian and of the nature of his investments in 1925, but they made no definite objection when Judge Higbee, who was not related to the surety, approved the guardian's first annual account on April 26, 1926. When Judge Dalton approved the final account of the guardian and discharged him, as a necessary incident, he also released the surety. While that order might have been attacked within a proper time and prior to changes of conditions, it was good on its face, and the belated attack is barred by our previous decisions.
See Act No. 288, chap. 1, §§ 19-25, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1[19]-16289-1[25], Stat. Ann. 1942 Cum. Supp. § 21.3178[19]-21.3178[25]). — REPORTER.
We find it unnecessary to grant appellees' motion to amend the record to show that the heirs had able counsel examining into their interests. This is admitted by appellant. We also find it unnecessary to consider appellant's claim that mandamus proceeding in the circuit court was an improper remedy for review of an order by a qualified probate judge. That question was litigated and decided in Smolenski v. Kent Probate Judge, supra. Owing to the death of Judge Higbee subsequent to the making of the order, the name of the Honorable Joseph A. Gillard, his successor, may be substituted upon the record.
The writ of certiorari is denied, with costs to appellee.
BOYLES, C.J., and NORTH, WIEST, BUSHNELL, and SHARPE, JJ., concurred. CHANDLER and STARR, JJ., concurred in the result.