In Re Guardianship of Carpenter

I cannot agree that the probate court had no jurisdiction. That is because the constitution, art. 6, § 7, does not restrict its jurisdiction to persons properly under guardianship. The grant is of jurisdiction over all "persons under guardianship," without restriction or exception. We must blind ourselves to reality to say that here there was no guardianship at all. If there was, I submit, with deference to the authority contra, that the probate court had jurisdiction. But there was inadvertence and resulting error of such character that the motion to vacate should have been granted in the probate court. If that be so, the order denying that motion was erroneously affirmed in the district court, and so should be reversed.

Under 2 Mason Minn. St. 1927, § 8701, aided somewhat by § 8983, the probate court has the same power as the district court to vacate an order, judgment, or decree procured "by fraud, misrepresentation, or through surprise or excusable inadvertence or neglect." See In re Estate of Gragg, 32 Minn. 142,19 N.W. 651. This, a proceeding in rem, is still pending in the probate court, subject only to this appeal. It has not been terminated by final decree, so the rule of Tomlinson v. Phelps, 93 Minn. 350, 101 N.W. 496, has no application. The district court has power to vacate an appealable order made before judgment and even to permit a renewal or repetition of the motion. That power is not lost because of expiration of the time for appeal. Barrett v. Smith, 183 Minn. 431, 237 N.W. 15. Inasmuch as the probate court, in its domain, has the same power as the district court, the motion under review was not barred because of expiration of the time for appeal from the order which it attacked. For the reasons stated by Judge Holt, that motion should have been granted, but, I submit, for mere error rather than want of jurisdiction.

The reach of this decision is not at all limited by the fact that this is a direct rather than a collateral attack. If the proceedings in the probate court are void for want of jurisdiction, they would be vulnerable to collateral attack anywhere and any time, even though they involved the sale of the ward's property by the guardian. Time has no forge whereon to fabricate shields for judicial proceedings void on their face. That is the condemnation we are placing on all that has been done in this case. (For the reason indicated, I think it erroneous and am confident that it is at least unnecessary.) Therein lies a danger which, in my view, we should not create unless we are compelled to when the issue is properly before us and decision one way or the other is inescapable.