9 N.W.2d 824 | Mich. | 1943
Litigation involving the Svitojus estate has been before the court in Svitojus v. Kurant,
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 *415
period (In re Ryan,
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.