[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 10 The probate court of Kent county formerly had before it the matter of the estate of Joseph Svitojus, incompetent. The incompetent died and subsequently orders were entered in the probate court which purported to discharge the guardian and the surety upon his bond. Thereupon another proceeding had its inception in the probate court. This was the matter of the estate of Joseph Svitojus, deceased. The only matter before us on this appeal arises out of this latter estate. At the outset it should be noted that neither the guardian nor his surety in the former proceedings has had any connection whatever with the estate now pending except to account to the estate of the deceased for the assets in the estate of the incompetent. And further, the administrator of the estate of the deceased had nothing to do with the estate of the incompetent, except to receipt for the assets of that estate. More than four years after the administrator was appointed he brought before the probate court a petition for authority to compromise and settle the estate's vendor's interest in the unpaid balance on a land contract at a very substantial loss. After hearing at which the heirs of the Svitojus estate were represented, and without any very definite objection on their part, the compromise settlement was *Page 25 approved by an order of the probate court on September 10, 1935. This order was made by Probate Judge Dalton, one of the two probate judges in Kent county. On November 1, 1940, the heirs of Svitojus filed in the probate court of Kent county a petition to have the order of September 10, 1935, vacated. And it may be noted that at the same hearing the heirs sought to have vacated two orders entered in the estate of Joseph Svitojus, incompetent, one of such orders having been made November 7, 1930, and the other January 27, 1931; but the appeal now before us in no way involves either of these two orders or the more recent order of the probate court vacating the same. Upon a rehearing of the petition of the heirs to vacate the order of September 10, 1935, made in the estate of the deceased, Probate Judge Higbee on April 12, 1941, granted the relief sought and vacated the order authorizing the compromise settlement made September 10, 1935. The pertinent portion of this order reads: "That the alleged order of September 10, 1935, was and is null and void abinitio."
Thereupon the administrator of the estate applied to the circuit court of Kent county for mandamus to compel the probate court to vacate the above quoted order. An order to show cause was issued, hearing was had, and the probate judge was directed to vacate his order of April 12, 1941, above quoted. Leave having been granted, the probate judge as defendant in the mandamus proceedings has appealed to this court in the nature of certiorari. The only question directly raised by the appeal is the right or jurisdiction of the circuit court to mandamus the probate judge to vacate the quoted order.
Mr. Justice CHANDLER is of the opinion that the circuit court was without jurisdiction in the mandamus *Page 26 proceedings and has so written. Under the circumstances presented by this record, I cannot agree with that conclusion.
The respondent probate judge in making his order of April 12, 1941, whereby he vacated the order of September 10, 1935, was brought to his conclusion that the latter order was "void ab initio" because Judge Dalton who made the order was the brother-in-law of Mr. Frank McKay who was the surety on the bond of the guardian in the previous Svitojus guardianship proceedings. In so holding Judge Higbee was in error. As hereinbefore noted, the order of Judge Dalton made on September 10, 1935, was in the estate of Joseph Svitojus, deceased; and neither Mr. McKay nor the guardian on whose bond Mr. McKay had been surety in the estate of Joseph Svitojus, incompetent, had any interest whatever in the order made by Judge Dalton on September 10, 1935, by which a compromise settlement was made by the administrator of the estate of Joseph Svitojus, deceased, as to one of the estate's assets. So far as this record shows Judge Dalton was not related in any way to any of the parties who were interested in his making his order of September 10, 1935. He was not disqualified. His order was valid.
It is on such a record that the question is now raised as to the right of the circuit judge to issue mandamus to vacate the order made by Judge Higbee on April 12, 1941. We are of the opinion that because of the lack of jurisdiction the order of Judge Higbee was void; and since it was void mandamus by the circuit court was proper.
In the particular now under consideration the practice and powers of the probate court are prescribed by statute. These statutes are controlling. *Page 27 An attempted action by the probate court in violation thereof is a nullity because of the lack of jurisdiction. No appeal was taken from the order of Judge Dalton entered September 10, 1935. The petition of the heirs filed November 1, 1940, which resulted in Judge Higbee's order of April 12, 1941, was a rehearing and a redetermination of the matter adjudicated by Judge Dalton's order of September 10, 1935. But by statute* the time within which a petition must have been filed for rehearing in the probate court was then limited to 90 days from the date of the order of which reconsideration was sought. The statute now provides 3 months. Act No. 288, chap. 1, § 19, Pub. Acts 1939, as amended by Act No. 26, Pub. Acts 1941 (Comp. Laws Supp. 1942, § 16289-1 [19], Stat. Ann. 1941 Cum. Supp. § 27.3178 [19]). Except for this limited statutory jurisdiction probate courts would be without power to grant rehearings. Hitchcock v. Judge of Probate,99 Mich. 128. Judge Higbee was without jurisdiction to rehear and review the adjudication by Judge Dalton made more than five years earlier. Not only was there a lack of jurisdiction, but the probate code provides that there shall be no appeal "from an order granting a rehearing." Act No. 288, chap. 1, § 37, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [37], Stat. Ann. 1941 Cum. Supp. § 27.3178 [37]). Because of this statutory provision there was no adequate remedy at law by which the aggrieved party could review Judge Higbee's order of April 12, 1941; and under such circumstances mandamus is available. And it may be noted that since Judge Higbee's order was of an interlocutory character, there was no appeal as a *Page 28 matter of right to the circuit court. But the circuit court had jurisdiction to issue an order to show cause in a mandamus proceedings. This jurisdiction is conferred upon circuit courts by the Constitution (1908), art. 7, § 10. We quote it in part:
"Circuit courts * * * shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto and certiorari and to hear and determine the same; and to issue such other writs as may be necessary to carry into effect their orders, judgments and decrees and give them general control over inferior courts and tribunals within their respective jurisdictions."
In Mitchell v. Bay Probate Judge, 155 Mich. 550 (syllabus), we held:
"Under section 8, article 6, of the (1850) Constitution (being the provision above quoted from the 1908 Constitution), probate courts, in the sense of grade, are inferior courts, and an application to the circuit court for a writ of mandamus * * * is the proper procedure."
"By statute** the primary authority to review orders and decisions of probate courts is conferred upon the circuit courts. * * * They have power to issue writs of mandamus and certiorari to probate courts." Seilnacht v. Wayne Probate Judge,190 Mich. 461.
In a case wherein a probate court attempted to make an order which it "had no jurisdiction to enter" we said:
"Writs of mandamus and prohibition may issue commanding the probate judge to vacate the order entered, and prohibiting him from taking any further *Page 29 proceedings in relation to the petition on which it is based."Stover v. Wayne Probate Judge, 219 Mich. 566, 573.
"It (mandamus) is the proper remedy for enforcing a specific legal right, for which there is no other adequate legal remedy and is not excluded by other legal remedies which are not adequate to secure the specific relief needed, nor by the existence of a specific remedy in equity. People, ex rel.Township of LaGrange, v. State Treasurer (syllabus), 24 Mich. 468.
"Mandamus is the only adequate remedy to vacate an interlocutory order not touching the merits." People, ex rel.Miller, v. Bay Circuit Judge (syllabus), 41 Mich. 326.
Justice CHANDLER has cited Lyle v. Cass Circuit Judge,157 Mich. 33, and numerous other cases to the proposition that: "A cardinal principle in mandamus is that judicial action will not be reviewed;" but the rule of these cases is applicable to "judicial action" in a matter wherein the tribunal had jurisdiction. Such holdings are not in conflict with those which announced the rule of law that mandamus is available to compel the vacation of an order which the court was without jurisdiction to make. In the instant case Judge Higbee was without any authority whatever to reconsider and vacate the order of Judge Dalton made more than five years earlier. In effect Judge Higbee's order was for the sole purpose of rehearing and redetermining the identical matter previously adjudicated by Judge Dalton. Because Judge Higbee was without jurisdiction his attempted order was void, and mandamus was the proper remedy by which to have such void order set aside. *Page 30
The order of the circuit court entered in the mandamus proceedings is affirmed. No costs on this appeal.
BOYLES, WIEST, BUTZEL, and SHARPE, JJ., concurred with NORTH, J.
* See 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]). — REPORTER.
** See 3 Comp. Laws 1929, § 13941 (Stat. Ann. § 27.542.) — REPORTER.