Welch v. Van Auken
| Decision Date | 11 October 1889 |
| Citation | 43 N.W. 371,76 Mich. 464 |
| Court | Michigan Supreme Court |
| Parties | WELCH v. VAN AUKEN ET AL. |
E. R. Annable, for plaintiff.
Osborn & Mills, for defendants.
Certiorari to the circuit court of Van Buren county to review its proceedings in the above cause. The proceedings were commenced by petition in the probate court to obtain leave from that court to bring suit on a guardian's bond. On appeal to the circuit the order made by the probate court granting such leave was set aside, and an order entered in the circuit court denying such leave. This writ is brought to reverse the order of the circuit court, and to reinstate the probate order. The facts as they appeared in the probate and circuit courts, and as they appear here, are that on April 16, 1883, the probate court appointed defendant Van Auken guardian of the person and estate of Charles Welch Sr., as an incompetent, requiring him to execute a bond pursuant to the statute in the penal sum of $5,000, to the probate judge, to secure the faithful performance of the trust, and accounting to that court. Defendant Van Auken executed the required bond, with defendant Willis W. Hodge and one Alexander M. Harrison as sureties, which was filed and approved by the probate court. The guardian thereupon received his letters, entered upon the discharge of his duties, assumed the care of the incompetent, and took possession of his estate of $4,040, consisting of moneys and securities, and made an inventory thereof. On September 20, 1887, the ward died intestate, and his son, the plaintiff in certiorari, was duly appointed administrator of his estate. The guardian thereupon voluntarily filed his final account to the probate court of that county, and prayed its allowance. The guardian appeared at the hearing, as did the administrator representing the estate. The probate court disallowed a portion, and allowed the remainder, of the guardian's account, and gave the guardian 60 days to settle with the administrator pursuant to its decree. This order was never complied with, nor appealed from, by the guardian. Thereupon the administrator obtained leave from the probate court to sue the guardian's bond to enforce compliance with the order on final accounting. From this order the guardian and one surety, defendant Hodge, appealed to the circuit court, and that court reversed the order of the probate court, for the reason, among others, that the probate court never had jurisdiction to appoint the guardian, because the petition for his appointment averred the existence of persons interested in the estate, who were not shown to have been served with notice of the petition for such appointment, and who did not appear on such hearing. The contention of defendants' counsel here is that certiorari is not the proper remedy, for the reason that, if this court reverse the order of the circuit court, the cause would be left to stand in the circuit court, and there to be tried de novo, and that no power is given in this court to reinstate the case in the probate court. This is not, however, a proceeding according to the course of the common law, and certiorari is the proper remedy. The reversal of the order of the circuit court, and the setting aside of such order, would, under the circumstances here, carry with it the reinstatement of the order of the probate court. The proceedings and order would seriously affect the rights of the parties, and the whole of the matters, so far as the right to bring suit upon the bond, are before us, and open to review. What the rights of the parties may be in any suit brought upon the bond we cannot now inquire into, but the right to bring the suit is a question which may fully be disposed of here.
Chapter 227, How. St., provides that "all bonds required by law to be taken in, or by...
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