11 Mich. 393 | Mich. | 1863
An application is made to this Court for a writ of prohibition, to restrain the Circuit Court for the county of Wayne in Chancery, from entertaining jurisdiction of a bill filed for relief touching the affairs and estate of Joseph Oampau, alleged to be non compos mentis.
It appears that the Probate Court appointed a guardian, and that on appeal the order was reversed and another guardian appointed, and the cause was remanded to have security given by the new .appointee. It is alleged that a writ of error has been sued out, and that the Probate Court regards this writ as a supersedeas. A special guardian having been appointed by the Probate Court, and an application for his removal having been instituted and entertained, he has appealed to the Circuit Court from the order requiring him to answer.
A bill is now filed setting up this complicated litigation, alleging also the threats of the special guardian to prolong
As the writ of prohibition, if issuable, is only for excess of jurisdiction, it is not material, on this motion, whether the facts charged are true or not.
There seems to be no power to issue this writ to restrain any action which can be disposed of by appeal, or other ordinary method of review. And as all decrees upon the merits are open to review on appeal in equity, we are only concerned with the application for relief pendente lite by injunction and receiver.
It is unnecessary and improper, therefore, in such a proceeding, to determine the questions which will thus be brought up, any further than may be required to settle the preliminary rights. I am very strongly inclined to the opinion that under our Probate system the Court of Chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the Probate Court.
That there are some such cases there is no doubt, but there is as little doubt that a very large portion of the old equity jurisdiction has been vested in the Courts of Probate.
The facts alleged in the bill show that there is a contest for possession between a general guardian appointed on appeal from the Probate Court, who has not been allowed to qualify, and a special guardian who has by an appeal suspended proceedings for his own removal, who threatens further litigation, and who is charged with gross fault. The Probate Court can make no effectual order settling this difficulty which is not liable to be suspended in the same way, and can, therefore, use no effectual means to prevent at once any abuse or mismanagement of the trust. The facts charged amount to an alleged abuse of legal process, attended by danger of damage to the
We can not assume that the Court of Chancery will not decide fairly and legally in the matter, nor can we by prohibition control that' Court if acting within its jurisdiction. The writ should be denied.
