(concurring in affirmance). The defendant in this case and Anton Romatz were married in the city of Toledo on the 25th of March, 1954, by a justice of the peace of said city. The parties were residents of Detroit and following the marriage returned to that city where they lived for several days in the home of defendant. Anton then left, returning to his former residence where he was living with 2 of his children. On the 1st of June, 1954, a guardian for Anton was appointed by the probate court of Wayne county, and an action was brought thereby seeking the annulment of the marriage. The bill of complaint filed averred that at the time of the marriage Anton was mentally incompetent, and that his consent to the marriage was obtained by fraud. In this respect it was averred that defendant took advantage of the mental incapacity of Anton and influenced him to go with her to the State of Ohio and to enter into the marital relation. It was further alleged that defendant’s purpose was to obtain the property of Anton Romatz at his death.
Subsequent to the bringing of the suit the guardian caused his appearance to be entered as next friend for Anton. The latter deceased prior to trial, and the plaintiffs in the instant case were by order of the court joined as parties plaintiff. On the hearing before the circuit judge testimony was offered in support of the allegations of the bill of complaint, and at the conclusion of plaintiffs’ proofs both sides rested. Defendant’s motion to dismiss was denied and the court disposed of the case on the merits, finding from the evidence before him that Anton was mentally incompetent at the time he went through the marriage ceremony with defendant. Plaintiffs’ claim of fraud as the inducement to the marriage was not discussed in the opinion filed, or referred to in the decree which granted plaintiffs the relief sought.
*97On appeal this Court entered an order reversing and setting aside the decree of the circuit court and dismissing the bill of complaint. The case is reported as Romatz v. Romatz, 346 Mich 438. The opinion rendered therein by this Court, after referring to various statutory provisions of the State of Michigan relating to divorce and annulment, said (pp 442, 443):
“We do not find authority in any of the above statutes that authorizes a court of equity in Michigan to take jurisdiction for the purpose of annulment of the marriage of an incompetent person when the marriage was performed out of Michigan. Jurisdiction to entertain an annulment suit is governed by the law of the domicile. It follows that the chancery court of Wayne county was without jurisdiction to entertain such a proceeding.”
It thus appears that the order entered reversing the decree of the circuit court and dismissing the bill of complaint was based on the conclusion that the jurisdiction of the Michigan courts to determine the controversy was dependent on statutory provisions relating to annulment suits. Motion for rehearing was denied.
Following dismissal of the case instituted by the guardian of Anton Romatz, plaintiffs herein, under date of February 21,1957, filed their bill of complaint in the instant proceeding, averring therein that they were the legal heirs of Anton Romatz and that as such they had a proprietary interest in his estate. As in the pleading filed by the guardian in the prior suit, it was averred that at the time of the Ohio marriage on March 25, 1954, Anton Romatz was a mentally-incompetent person and incapable of giving his consent to the marriage. The averments of fraud in the first bill of complaint were repeated, together *98with, the claim that a statute of Ohio requiring application for a marriage license not less than 5 days before the issuance thereof, except on good cause shown, had been violated. With the exception of this reference to the Ohio statute the bill of complaint in the present case is essentially identical with that filed by the guardian in the first suit.
Motion to dismiss was made by counsel representing defendant, based on the dismissal of the first case by this Court in Romats v. Romats, supra, and on the further grounds that the plaintiffs had failed to allege a cause of action in their favor, that the annulment proceeding could not properly be instituted after the death of one party to the marriage, and that plaintiffs were seeking to relitigate matters previously determined. Following argument before the circuit judge hearing the matter the motion was granted. As appears from the opinion filed, the judge concluded that failure to observe the statute of Ohio with reference to the issuance of a marriage license was without merit, that the marriage was at most voidable under the law of the State of Ohio, and that its validity could not be collaterally attacked by the heirs. An order was entered accordingly, and plaintiffs have appealed.
The circuit judge was not in error in granting the motion to dismiss. The primary question at issue as raised by the bill of complaint had reference to the alleged mental incapacity of Anton Romatz to give consent to the marriage. The determination in circuit court of the suit brought by his guardian, and the subsequent holding of this Court, above cited, had reference to such issue. The claim of fraud as set forth in each bill of complaint was premised on the alleged mental condition of Anton and the conduct of defendant in taking advantage thereof in procuring the marriage.
*99In effect plaintiffs are seeking in this proceeding to challenge the opinion of this Court in the case instituted by the guardian and the order entered dismissing the hill of complaint. Such method of procedure is not permissible. As held in City of Highland Park v. Royal Oak No. 7 Storm Sewer Drain District, 309 Mich 646, 650:
“There cannot he a rehearing under the guise of a new bill of complaint.”
The circuit judge was right in his holding, on which the order of dismissal was based, that the bill of complaint filed by plaintiffs in the instant case did not state a cause of action that they were entitled to prosecute. The order dismissing the bill is affirmed, with costs to defendant.
The litigation in question suggests an unusual situation. As noted, this Court held in the guardian’s suit that a Michigan court of equity is without jurisdiction to grant annulment of a marriage, solemnized in another State, on the ground of lack of mental capacity of one of the parties. In effect plaintiffs challenge the correctness of that holding. Such challenge, if tenable, should be made directly in the proceeding in which the decision was rendered, that is, in the suit started on behalf of Anton Romatz during his lifetime. In this connection see L’Hommedieu v. Smith, 351 Mich 223, 229. The matters in issue may not be relitigated in a new suit instituted by the heirs. The equitable relief for which they ask may properly be sought only in the proceeding instituted in 1954. Under the circumstances the order sustaining the action of the circuit court in dismissing the present suit will be entered without prejudice to the right of plaintiffs, if they wish to do so, to seek a reconsideration of the *100order of this Court denying a rehearing of the prior case.
Dethmers, C. J., and Kelly, J., concurred with Carr, J. Edwards, J., did not sit.