Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.


Civ. 11162

Decided: October 19, 1939

Freitas, Duffy & Keating, of San Rafael, for petitioner. Harold V. Daley, of Beverly Hills, and Abbott, Appel & Dains, of San Francisco, for respondent.

Petition for a writ of prohibition. It is alleged that petitioner, Belmore Browne, on April 23, 1934, was duly and regularly appointed guardian of the person and estate of Ella H. Browne by the superior court of Santa Barbara county, and that ever since such date has been and now is the duly appointed and acting guardian of the person and estate of Ella Browne; that on November 22, 1937, the guardian filed in the superior court of Santa Barbara county in the guardianship proceeding a certain petition for instructions. That petition, a copy of which is attached to the present petition as an exhibit, sets forth that the guardian had kept the ward in Santa Barbara county until October of 1936, at which time, on the advice of competent psychiatrists, and for the best interests of the ward, she had been removed to San Francisco, and on the advice of competent named physicians, had been placed in the Greer Home; that the treatment accorded the ward and the personnel of the home are acceptable to the ward, but the ward desires, nevertheless, to return to Santa Barbara; that the attending physician has advised against moving the ward; that one of the ward's children, J.W. Browne, has urged that his mother be returned to Santa Barbara; that the guardian desires instructions on this matter and also desires instructions as to whether letters from J.W. Browne to his mother should be permitted to be received by her uncensored, inasmuch as such letters invariably cause the ward, who is senile and approaching ninety years of age, to become agitated and excited. Pursuant to such petition for instructions, after a hearing at which J.W. Browne did not appear, the Santa Barbara court entered its order instructing the guardian that the ward should remain in San Francisco at the Greer Home; that it was for the ward's best interests that she remain there; that the attending physician should examine, and if need be, censor all incoming mail of the ward.

J.W. Browne, who, as already stated, had failed to appear on the hearing of the above matter, moved, under section 473 of the Code of Civil Procedure, to reopen the case. The Santa Barbara court had another hearing on this petition. On June 20, 1938, that court, after a full hearing, again entered an order instructing the guardian to keep the ward at the Greer Home in San Francisco. The order recites that all parties concerned stipulated in open court that the cause should be submitted on the testimony of a named psychiatrist, who had been appointed by the court. The doctor named by the court testified that the ward Mrs. Browne is sane, but that her mentality is childish, and that she cannot, without guidance, form practical judgments; that considering her age, and her physical and mental condition, it would be hazardous to her well-being to transfer her to Santa Barbara; that several years before she had had a mental illness from which she has recovered; that the excitement incident to her transfer to Santa Barbara might well bring on another such attack; that one of the valves of her heart leaks and that any slight excitement might bring on a fatal heart attack; that he had carefully examined the Greer Home and that the service, quarters and environment were good and adapted to Mrs. Browne's needs; that there is no nursing home in Santa Barbara comparable to the Greer Home and within its price range; that Mrs. Browne's expressed desire to return to Santa Barbara is merely a normal result of her advanced age and condition. At this hearing the guardian expressed to the court his willingness to move Mrs. Browne to Santa Barbara if it could be done safely, but the doctor positively and unequivocally recommended that she remain in San Francisco. It was on this testimony that the Santa Barbara court instructed the guardian to keep the ward in San Francisco. No appeal was taken from the orders of the Santa Barbara court.

The petition for prohibition next recites that on April 7, 1939, Harold V. Daley, who had been the attorney for J.W. Browne in the Santa Barbara proceedings, in San Francisco, filed, on behalf of Mrs. Browne, a petition for habeas corpus. The habeas corpus petition recites that Mrs. Browne is being unlawfully restrained of her liberty at the Greer Home; that she desires to return to Santa Barbara but her guardian and doctors will not permit her to do so; that her health is such she can safely be so transferred. The San Francisco court issued the writ of habeas corpus, whereupon the guardian filed his demurrer and answer. By his demurrer, among other things, the guardian objected to the jurisdiction of the Superior Court of San Francisco, in that the Santa Barbara court had appointed a guardian, was exercising jurisdiction over the matter, and had already passed on the issues presented by the habeas corpus petition. Although the allegations of the demurrer are not as clear as might be desired, we are of the opinion that such allegations not only raised the plea of res judicata, which can properly only be raised by answer, but also raised the question as to whether the Santa Barbara court had exclusive jurisdiction of the controversy. The Superior Court of San Francisco overruled the demurrer, whereupon the petitioner sought prohibition from this court to restrain the trial of the habeas corpus proceeding.

After this court had issued the alternative writ, the respondent filed a demurrer and answer. By the answer the respondent specifically repudiates any desire or intent by the habeas corpus proceeding to free Ella H. Browne from the custody of her guardian. In other words, what the petitioner in the habeas corpus proceeding is admittedly attempting to secure is an order of the San Francisco Superior Court, which would be nonappealable, transferring Ella H. Browne to Santa Barbara, in direct violation of the two orders made by the Santa Barbara court after full hearings in the guardianship proceeding. It would, indeed, be an anomalous situation if, by the writ of habeas corpus in San Francisco, Ella H. Browne could thus collaterally attack the orders of the Santa Barbara court, and secure what in practical effect would be a reversal of the orders of that court.

It is an admitted fact that the Santa Barbara court has jurisdiction of the person and estate of the incompetent and is presently exercising that jurisdiction. It has jurisdiction to modify its prior orders. It has complete jurisdiction to grant full and complete relief in the controversy presented by the habeas corpus proceeding. Under such circumstances the applicable legal principles, amply supported by authorities, are thus stated in 7 California Jurisprudence, page 591, section 14:

“Where two tribunals have concurrent jurisdiction over the same parties and subject-matter, the tribunal in which jurisdiction first attaches retains it exclusively. The other court, if of coordinate jurisdiction only, cannot in any form review, reverse, nullify, restrain or in any way control any of the judgments, orders, proceedings or process of the court first acquiring such jurisdiction. The only case in which the power to interfere with the judgments and decrees of another court of concurrent jurisdiction is where the court in which the action is pending is unable by reason of its jurisdiction to afford the relief sought. * The fact that the parties to the proceeding are not the same as the parties to the judgment or decree sought to be enjoined does not relieve the case from the operation of the rule, nor can the consent of the parties change the rule or relax its binding force in any particular case. The rule is established and enforced not so much to protect the rights of parties as to protect the rights of courts of co-ordinate jurisdiction to avoid conflict and confusion in the administration of justice.”

A proceeding in habeas corpus is no different in this regard than any other type of proceeding. In 29 Corpus Juris, page 116, section 112, the rule, supported by authorities from many states, is stated as follows:

“Pursuant to a general rule of wide application, and upon which there is no conflict of authorities, it has been held that a court is without jurisdiction where it attempts by habeas corpus to interfere with the exercise by another court of jurisdiction theretofore acquired, whether such jurisdiction is acquired in another habeas corpus proceeding or on appeal, or otherwise, unless the prior jurisdiction has been terminated.” See, also, 12 Rul. Case Law, p. 1218, sec. 37; State v. Murphy, 132 Mo. 382, 33 S.W. 1136, 53 Am.St.Rep. 491; Commonwealth v. Gordon, 197 Ky. 367, 247 S.W. 45; Amato v. Erskine, 100 Conn. 497, 123 A. 836; Ex parte State, 150 Ala. 489, 43 So. 490, 10 L.R.A.,N.S., 1129, 124 Am.St.Rep. 79; People v. Williams, 334 Ill. 241, 165 N.E. 693.

The rule above stated is obviously one of necessity. Where two courts have concurrent jurisdiction over the same controversy, the first to acquire jurisdiction, assuming its power is adequate to completely dispose of the controversy, has complete and exclusive jurisdiction. Any other rule would lead to constant collision between courts and be productive of utmost confusion.

It is also well settled in this state that prohibition will lie to restrain one court from assuming jurisdiction over a matter when another tribunal having concurrent jurisdiction has assumed and is exercising it over the same matter. Strosnider v. Superior Court, 17 Cal.App.2d 647, 652, 62 P.2d 1394; Gorman v. Superior Court, 23 Cal.App.2d 173, 72 P.2d 774; Lee v. Superior Court, 191 Cal. 46, 214 P. 972; see, also, France v. Superior Court, 201 Cal. 122, 255 P. 815, 52 A.L.R. 869.

We do not mean to hold that habeas corpus by one court of concurrent jurisdiction may not properly issue where another court has declared a person incompetent or delinquent, and assumed jurisdiction. In a proper case habeas corpus will issue. This is all that was held in Re Rider, 50 Cal.App. 797, 195 P. 965, so strongly relied on by respondent. In that case the Los Angeles superior court had declared the petitioner a ward of the juvenile court, and she was placed pursuant to that order in juvenile hall. By her petition for habeas corpus in Los Angeles she sought to be permitted to have private consultation with her attorney to prepare for the defense of a felony charge then pending against her—a constitutional privilege which had been denied her by the custodians of juvenile hall. The court held, and properly so, that habeas corpus could be used to secure that privilege—that a person is unlawfully restrained of his liberty when he is deprived of a constitutional right conferred on even those who are confined. But that is not the situation here. In the present case, Ella H. Browne had admittedly been properly and lawfully declared an incompetent, and petitioner in this proceeding has admittedly lawfully and properly been appointed her guardian. Under section 1500 of the Probate Code “The guardian of the person of a ward may fix the residence of the ward at any place in the state, but not elsewhere without the permission of the court”. In the present case the guardian did not act on his own initiative but secured two orders of the Santa Barbara court instructing him to place and keep the ward in the Greer Home in San Francisco. No attack is made on the regularity of those proceedings. The Santa Barbara court possesses full power to change or modify its orders if changed conditions occur. Full relief can be secured by Ella H. Browne in the Santa Barbara court. She is not being deprived of any constitutional rights. What has been and is being done for her has been and is being done pursuant to law. In this respect the present case is closer to the case of In re McDermott, 77 Cal.App. 109, 246 P. 89, than it is to the Rider case. In the McDermott case a ward of the juvenile court was permitted by the court to remain in the custody of her parents. Later the court ordered her sent to the juvenile home. The judge of the juvenile court and the custodians of the home refused to permit an attorney to consult with her relative to the change in her custody. In distinguishing the Rider case the court stated (77 Cal.App. page 111, 246 P. page 90):

“One of the essential differences between the Rider Case and the case at bar is that in the former the ward was being detained on a felony charge against her which was about to be prosecuted, which of necessity involved the preparation of a defense, and, as ordinarily incidental thereto, frequent confidential consultations between the defendant and her attorney; while in the instant case the ward has not been accused of the commission of any criminal offense, but is being detained in the juvenile home primarily under the original order by which she was adjudged a ward of the juvenile court; and, secondarily, because of some alleged irregularities in her conduct necessitating or at least suggesting the desirability of a change in her care and custody. It does not appear that any trial or proceeding of any character is pending or contemplated with reference thereto.

“The order of the court by which petitioner was made a ward of the juvenile court of necessity had the effect of transferring the matter of her guardianship from her parents to the court itself, and it thereupon became discretionary with the court whether to permit the minor to return to the home of her parents or to place her within the care and custody of some state institution.”

The respondent argues that whether or not the above principles are correct, prohibition can never issue to restrain a habeas corpus proceeding, for the reason that prohibition can only issue to an inferior tribunal; that so far as habeas corpus is concerned, the superior court is not an inferior tribunal but is on the same plane with the Supreme Court and District Courts of Appeal, citing Matter of Zany, 164 Cal. 724, 130 P. 710; Matter of Hughes, 159 Cal. 360, 113 P. 684; Derrer v. Superior Court, 129 Cal.App. 154, 18 P.2d 371, and similar cases. In the Zany case it was held that the Supreme Court, under the law then existing, had no power to grant a hearing on a habeas corpus proceeding after decision by the District Court of Appeal. In the course of the decision it was stated (164 Cal. page 726, 130 P. page 710): “The result has been that, with reference to such proceedings, the Supreme and superior courts, to each of which was given the power to issue writs of habeas corpus, stood upon the same plane, neither being inferior to the other in any other sense than that a superior court, in determining any such matter, would naturally follow a precedent established by the highest court in the state, if any such precedent had been established.”

This rule does not mean that for all purposes the superior, appellate and Supreme courts are on a parity in habeas corpus proceedings. It certainly does not mean that where a trial court is proceeding without jurisdiction to hear a habeas corpus proceeding the appellate or Supreme courts are powerless to prevent by prohibition such abuse of power. This was clearly pointed out in France v. Superior Court, 201 Cal. 122, 255 P. 815, 817, 52 A.L.R. 869. In that case France was convicted of a felony and his conviction affirmed. Before the remittitur issued there was filed in the superior court a petition for a writ of habeas corpus. After the remittitur had issued the superior court granted the writ and ordered France discharged from custody. The district attorney moved for an order of court remanding France to the custody of the sheriff to be delivered by him to San Quentin in accordance with the terms of the affirmed judgment. France instituted prohibition proceedings. Relying upon the Zany case and other cases of a similar nature, the petitioner contended that the order of the trial court in the habeas corpus proceeding was a final judgment. The respondents argued that the decision in the habeas corpus proceeding was void for the reason that the trial court had no jurisdiction, the cause then being on appeal. After stating the rule quoted from the Zany case, supra, the court in the France case stated: “By this is meant, however, as we understand these decisions, ‘that the decision of any court in a habeas corpus proceeding, provided the court has jurisdiction, cannot be reviewed by any other court in any way.’ Matter of Zany, supra [164 Cal.] page 726, 130 P. 710.” (Italics ours.) In other words, jurisdiction of the superior court over the habeas corpus proceeding can be inquired into by a higher court, although, except as provided in section 1506 of the Penal Code, no other court can “review” the decision of the superior court in a habeas corpus proceeding. Matter of Hughes, supra. In the France case it was held, citing many cases, that a superior court has no jurisdiction to grant habeas corpus in a criminal case after an appeal; that its order issuing the writ was void, and that the appellate court possesses the power to declare such order void. If, as contended by respondent in the present case, the superior court was for all purposes a court of concurrent jurisdiction in habeas corpus proceedings with the Supreme Court, the latter court would possess no power to declare an order of the superior court in a habeas corpus proceeding void. The France case repudiates such doctrine.

There appears to be no case in this jurisdiction directly holding that the appellate courts have no power to restrain by prohibition a trial court from hearing an application for habeas corpus, nor does there appear to be any case directly holding to the contrary. There are cases from other jurisdictions, however, holding that such usurpation of jurisdiction by a trial court may be controlled by a higher court by prohibition. State v. Murphy, 132 Mo. 382, 33 S.W. 1136, 53 Am.St.Rep. 491; Commonwealth v. Gordon, 197 Ky. 367, 247 S.W. 45; Ex parte State, 150 Ala. 489, 43 So. 490, 10 L.R.A., N.S., 1129, 124 Am.St.Rep. 79. The power to issue writs of prohibition is conferred on this court by the Constitution. (Art. VI, sec. 4b.) That power extends to restraining the superior court from assuming jurisdiction over any proceeding where it does not possess such jurisdiction, including, in our opinion, a habeas corpus proceeding. It would result in utmost confusion in the administration of justice if no appellate court had power to prevent a trial court from proceedings to hear a habeas corpus proceeding over which it clearly had no jurisdiction. The power to prevent such usurpation of power in our opinion, rests with the higher courts.

As already indicated, we do not mean to hold that one superior court would not have jurisdiction to issue habeas corpus at the instance of a ward physically present in the county where the writ is sought after guardianship proceedings have been instituted in another superior court. The Rider case, supra, illustrates such a situation. But where the habeas corpus proceeding is attempted to be used, as here, to collaterally attack the orders of another court, that court having assumed jurisdiction first, the second court has no jurisdiction to proceed under the authorities already cited. See, also, on the general principle, In re Culp, 2 Cal.App. 70, 83 P. 89; In re Inman, 32 Cal.App.2d 130, 89 P.2d 421.

For the foregoing reasons it is ordered that the demurrer to the petition be overruled and that the writ of prohibition issue as prayed for.

PETERS, Presiding Justice.

We concur: KNIGHT, J.; WARD, J.

Copied to clipboard