September 3, 1931, Charles Gedminas filed an application in the probate court of Wayne county for the admission of Josephine Gedminas to the Michigan Home and Training School at Lapeer. The petitioner alleged that he is the father of Josephine Gedminas and that the "patient was examined at the child study clinic in August, 1931. Mental age 7 years 4 months. I. Q. 49. Sex problem." Following the filing of this petition an order was entered appointing T.C. Starrs and E.J. Quirk physicians to examine said Josephine Gedminas. On the return day fixed for the hearing, Dr. Starrs filed a certificate stating that he had examined Josephine Gedminas and found that she was feebleminded and required treatment in an institution. Dr. Quirk, the other physician, filed a like certificate. An order of commitment of Josephine Gedminas was entered September 16, 1931, by the judge of probate.
January 13, 1937, a petition for writ of habeas corpus was filed in which petitioner alleges that the facts set forth in the application of Charles Gedminas, upon which the proceedings were based, are not sufficient for the allegation of feeble-mindedness as is required under 2 Comp. Laws 1929, § 6888; and that the probate judge did not institute an inquest and take proofs of the alleged feeble-mindedness of Josephine Gedminas before entering an *Page 608 order of commitment as required by the above statute. The respondent contends that review of a commitment as an insane or feeble-minded person must be by appeal or writ of error and not by habeas corpus.
In People v. Harris, 266 Mich. 317, we said:
"Habeas corpus is not a substitute for writ of error to inquire into the regularity of the trial and conviction. Onhabeas corpus the question is solely one of jurisdiction of the court to enter the judgment of conviction and sentence. In reGardner, 260 Mich. 122; In re Lamanna, 263 Mich. 62. Without accompanying writ of certiorari, the question would be determined from the face of the records. The accompanying writ of certiorari is merely ancillary, not to be a substitute for writ of error nor to change the scope of review on habeascorpus but to supply material for determination of jurisdiction. In re Gardner, supra; In re Moynahan, 255 Mich. 497 . * * *
"But where the court has jurisdiction, an error in the proceedings cannot be passed upon by habeas corpus even though it would require reversal on appeal. In re Ellis, 79 Mich. 322;In re Krusiewicz, 263 Mich. 74."
In Palmer v. Kalamazoo Circuit Judge, 83 Mich. 528, the court said:
"The writ of habeas corpus penetrates the walls of insane asylums as fully and freely as any other place where persons are illegally restrained of their liberty, and that the orders and decrees of probate courts possess no immunity different from those of other courts when they proceed without jurisdiction."
In Re Greenman, 212 Mich. 687, the court said: "The probate court derives its jurisdiction from the statute. To obtain jurisdiction in this case (commitment *Page 609 to home for epileptics), therefore, the provisions of the statute should have been strictly pursued. See North v. Joslin,59 Mich. 624; Grady v. Hughes, 64 Mich. 540; In re Phillips,158 Mich. 155; In re Miller's Estate, 173 Mich. 467;In re Allen, 82 Vt. 365 (73 A. 1078, 26 L.R.A. [N. S.] 232); 15 C. J. p. 892." And held that service of notice on the child was insufficient as to time. This was shown in the return of the probate judge.
In Re O'Neil, 239 Mich. 450, we held that where the petition for an order directing the admission of an alleged insane person to a hospital contained a conclusion rather than facts, the probate court did not obtain jurisdiction and all subsequent proceedings were void because of it.
Section 6888, 2 Comp. Laws 1929, provides that: "Such petition * * * contain a statement of the facts upon which the allegation of such mental disease is based and because of which the application for the order is made."
An examination of the petition filed in the case at bar reveals that it does not contain a statement of facts upon which the allegation of feeble-mindedness is based. The petition states, "patient was examined at the child study clinic in August, 1931. Mental age 7 years 4 months. I. Q. 49. Sex problem." While the petition states that Josephine Gedminas was examined, it does not state the purpose nor the nature of the examination. Moreover, the statements concerning Josephine's mental age and that she is a sex problem are clearly conclusions which are not based upon any facts in the application. In the O'Neil Case, supra, we said:
"The purpose of the statute is manifest. Facts must be stated. Such is the statutory mandate. *Page 610 Facts were not stated. This was jurisdictional. The court could not assume jurisdiction on the petition filed."
See, also, In re Guardianship of Storick, 64 Mich. 685; Exparte Drye, 250 Mich. 210.
In our opinion the petition in this cause is insufficient because of the absence of facts and gave the probate court no jurisdiction to hold an inquest and commit the person. All subsequent proceedings were a nullity and Josephine Gedminas may not be detained by virtue of them. The lack of jurisdiction in such cases may be inquired into in habeas corpus proceedings.
Petitioner should recover costs.
WIEST, POTTER, and CHANDLER, JJ., concurred with SHARPE, J.