Coot v. Willett

| Mich. | Oct 12, 1892

Per Curiam.

The relator was adjudged an incompetent person by the probate court of Ionia county, August 20, 1886, and one Levi J. Barnard was appointed guardian. He gave the required bond, and has ever since had the charge and control of the estate of said alleged incompetent. On May 24, 1892, relator filed his petition in the probate court of said county, praying that the order adjudging him incompetent might be set aside and,held for naught, on the ground that it was void for jurisdictional defects appearing upon the face of the proceedings. The respondent refused to entertain the petition for the reason that he had no authority to vacate a final order or decree rendered by the court. Belator now asks for the writ of mandamus to compel the respondent to proceed and hear his petition upon the merits.

Proceedings of this character, to test the validity of orders of the probate court appointing guardians, have universally been brought to this Court by certiorari or writ of error. Belator alleges that he was never incompetent, and that the petition itself does not show a case of incompetency. If this were so, he certainly should have proceeded promptly, and taken the usual method to test the validity of the proceedings. We do not think he is in position, under this allegation in his petition, to invoke the discretionary writ of mandamus to compel action on the part of the probate court, which might very seriously affect those who have acted in good faith in reliance upon the jurisdiction of the court.

Undoubtedly the relator might petition the court for the termination of the guardianship upon the ground of his present competency, and the court in that case should proceed to a hearing upon the merits of such a petition. We think the petition is sufficieiit for that purpose.

The writ will therefore issue, directing the respondent to proceed to a hearing and determination of the present competency of the relator to have the charge and control of his property.