This one of those occasional cases in which the Court of Appeals uses its discretion to consider a matter not raised below.

Duncan sued Progressive’s insured for a car accident but he died before she could serve him. She got the probate registrar to appoint a special administrator solely to accept service, telling the court that defendant had no heirs. She served him but the defendant’s estate did not appear so she took default. Progressive intervened to contest the sufficiency of service. It moved to dismiss the negligence case, arguing that service was no good because the insured did have heirs (whom Duncan had never contacted) and that the appointment was improper for other reasons. The accident-case judge granted the motion.

The Court of Appeals holds that the motion to dismiss was an improper collateral attack on the probate order appointing the special administrator. Duncan hadn’t raised the issue in the trial court. The appellate court decided to review it anyway because an “issue involving orderly judicial administration is a matter of statewide public importance” and this was a pure issue of law on undisputed facts.

The court quotes a case to the effect that “a decree in the probate court has . . . the conclusiveness inherent in a judgment of a common law court and, therefore, may not be collaterally attacked.” This is interesting since the Marvin Johnson case later said essentially that the probate court is a common-law court (we’ve expressed our feelings about Johnson before.) In any event, even if there were some defect in the appointment the place to attack it was the probate court (as Progressive had started to do and then, for reasons not explained, switched tactics).

LATER EDIT: The court issued an amended version of this opinion on September 27, 2011. The amendment adds a new paragraph — now no. 18 — in which it concludes, addressing another Progressive argument, that the rule against collateral attack also applies to “orders that are not final judgments in the traditional sense,” citing some out-of-state probate cases. The court also took the opportunity to edit the opinion a bit, omitting a few words here and adding a citation there.

(link to opinion)