Opinion
Docket No. 58, Calendar No. 38,881.
Submitted April 23, 1936.
Decided June 11, 1936. Rehearing denied September 2, 1936.
Appeal from Huron; Boomhower (Xenophon A.), J. Submitted April 23, 1936. (Docket No. 58, Calendar No. 38,881.) Decided June 11, 1936. Rehearing denied September 2, 1936.
Case by William McMann, administrator of the estate of Orville McMann, deceased, against General Accident Assurance Corporation, a foreign corporation, John A. Howard and Allan Durgis for fraud and deceit in the procurement of a settlement of a cause of action. Action dismissed. Plaintiff appeals. Affirmed.
Walter M. Nelson, Hugh K. Davidson and David E. Kull, for plaintiff.
Kerr, Lacey Scroggie ( Paul Woodworth, of counsel), for defendants.
The controlling question may be stated as follows: May an administrator maintain a suit at law for alleged fraud in the inducement of a settlement release for personal injuries when the settlement was approved by an order of a probate court having jurisdiction in the premises and this order has not been vacated or set aside?
Plaintiff appeals from an order dismissing his declaration, the trial court holding it to be a collateral attack upon the probate order.
Plaintiff, as administrator, was paid $1,000 in full settlement for the unlawful death of his son Orville McMann. This amount he retained and credited upon his ad damnum of $30,000, and he seeks a judgment for the balance. He alleges that he "is not suing upon the original cause of action for negligence, but is affirming the transaction or settlement and suing for fraud," and that no tender back is necessary. Speath v. Merchants' Life Ins. Co., 245 Mich. 100.
Defendant urges affirmation of the order of dismissal in that the unappealed orders of the probate court made in the exercise of a jurisdiction conferred by law are final and conclusive and cannot be attacked collaterally. McDannel v. Black, 270 Mich. 305, 310.
The power of the probate court to approve settlements is found in 3 Comp. Laws 1929, §§ 15663, 15782.
"If the probate court had jurisdiction to make the order for compromise and settlement of the infant's claim in the tort action then pending in the circuit court, such order cannot be challenged collaterally. To set aside a settlement made by and under an order of the probate court which it had jurisdiction to make, as unfair or fraudulent, there must be a direct proceeding for that purpose, a bill in equity." Dudex v. Sterling Brick Co., 237 Mich. 470.
In the Dudex Case it was held that the probate court did not have jurisdiction and therefore its order was void, but in the instant case no other court was exercising jurisdiction when the probate court approved the settlement herein.
The record shows that the facts were given the probate court in the "petition for settlement" and the order authorizing the settlement recites "it being made to appear to this court that the said settlement is a fair and equitable settlement of said cause of action and for the best interests of the estate of the said Orville Arthur McMann, deceased. It is hereby ordered," etc.
Appellant argues that the probate court's action in the premises was purely permissive and that its order does not bar this action. No authority, however, is cited. We do not view the probate order of approval in this manner; it was, in effect, a judgment that the proposed settlement was fair and just and except by appeal therefrom or by direct attack in equity for fraud, no other inquiry may be made into its sufficiency. Morford v. Dieff enbacker, 54 Mich. 593; Holden, Judge of Probate, v. Lathrop, 65 Mich. 652; Egan v. Grece, 79 Mich. 629; Heap v. Heap, 258 Mich. 250; McDannel v. Black, supra, and In re Estate of Taylor, 271 Mich. 404.
Plaintiff may not by indirection accomplish that which he may not do directly.
The order of dismissal is affirmed, with costs to appellee.
NORTH, C.J., and FEAD, WIEST, BUTZEL, EDWARD M. SHARPE and TOY, JJ., concurred. POTTER, J., took no part in this decision.