DISSENTING OPINION Relatrix is asking this court to mandate the respondents to grant a change of venue in her action now pending in the Probate Court of Marion County.
The action in which this change of venue is sought is an equitable one seeking to set aside for fraud a judgment of adoption rendered by said probate court.
This is an independent action which formerly would have been prosecuted by an original bill in a court of equity. It is not based on any of our statutory grounds for review of judgments or for the vacation of judgments. Nealis, Administrator v. Dicks (1880), 72 Ind. 374. "A nisi prius court of equity may, at any time, vacate a judgment against a defendant where it is shown that the apparent jurisdiction over the defendant's person was procured by the fraud of the plaintiff." Vivian Collieries Co. v. Cahall (1915), 184 Ind. 473, 481, 110 N.E. 672.
I am of the opinion the Probate Court of Marion County has no jurisdiction to entertain this equitable action in which the change of venue is being sought. Jurisdiction of this court is defined by § 4-2910, Burns' 1946 Replacement, Part 2, which reads as follows:
"Said probate court, within and for the county for which it is organized, shall have original, exclusive *Page 277 jurisdiction in all matters pertaining to the probate of wills, the appointment of guardians, assignees, executors, administrators and trustees, and to the administration and settlement of estates of minors, persons of unsound mind, aged, infirm and improvident persons, habitual drunkards, insolvents and deceased persons, and of trusts, assignments, adoptions and surviving partnerships, and all other probate matters, and shall have concurrent jurisdiction in the following matters:
"First. Proceedings in partition.
"Second. Applications for the appointment of receivers and actions against corporations by either creditors or stockholders, or both.
"Third. Applications for writs of habeas corpus.
"Fourth. Proceedings to resist probate of wills and proceedings to contest wills.
"Fifth. Complaints to construe wills and to dissolve trusts.
"Sixth. All actions by and against executors, administrators, guardians, assignees and trustees."
Nowhere in this section of our statutes is the Probate Court of Marion County given the power to exercise general chancery powers. Its jurisdiction is limited to the particular matters set out in this statute. In the cases enumerated in this statute it may exercise the powers incident to courts of chancery, but not beyond those cases. West v. Thornburgh and Another (1843), 6 Blackf. 542.
At the time the last mentioned case was decided the jurisdiction of our probate court was limited as it now is to particular matters and had no general chancery powers. There this court held the probate court had no jurisdiction in the case of a bill in chancery to enforce a vendor's lien on real estate for unpaid money for the purchase price of land partitioned in said court. On page 544 of this opinion the court said: "In the cases enumerated in the statute, they may exercise the *Page 278 powers incident to courts of chancery, but not beyond those cases. If this were a continuation of the proceedings for the partition of the land, the jurisdiction of the court could not be doubted. But we regard the suit in that case as having terminated, and this suit as a separate and independent proceedings for the collection of a debt."
The same can be said of the case before us; the case resulting in the judgment of adoption has long since terminated. The suit to set aside this judgment of adoption under all the holdings is a new and independent equitable proceedings which before the adoption of our code of procedure would necessarily have been brought in the court of chancery.
It is true that § 4-2916, Burns' 1946 Replacement, Part 2, provides that the probate court is a court of generaljurisdiction. But by this provision it was not meant to confer upon this court jurisdiction to try cases not enumerated in said § 4-2910. What was meant is that the probate court is vested with all the powers of any court of record when disposing of any matter of which the statute gives it jurisdiction. Doe on theDemise of Hain and Others v. Smith (1849), 1 Ind. 451.
In stating that the probate court cannot assume jurisdiction of suits in equity to have a judgment declared void for fraud we do not mean that the relatrix is remediless. She can secure complete relief from the courts of general superior jurisdiction.Frankel v. Garrard (1903), 160 Ind. 209, 66 N.E. 687;Greenwaldt v. May (1890), 127 Ind. 511, 27 N.E. 158; Brown v. Goble (1884), 97 Ind. 86.
It is true each of the cases last cited has to do with setting aside a justice of the peace judgment yet I think each points to the remedy in this case. *Page 279
I am of the opinion, therefore, that we should not compel a change of venue because the probate court has no jurisdiction of the cause in which the change is sought and that the petition herein should be denied.
O'Malley, C.J., concurs.