MILANI ET AL v. SUPERIOR COURT IN AND FOR ALAMEDA COUNTY

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District Court of Appeal, Third District, California.

MILANI ET AL. v. SUPERIOR COURT, IN AND FOR ALAMEDA COUNTY.

Civ. 7028.

Decided: December 22, 1943

F. W. Halley and Leslie A. Cleary, both of Modesto, and Errol C. Gilkey, of Oakland, for petitioners. Ralph E. Hoyt, Dist. Atty., R. Robert Hunter, Asst. Dist. Atty., Stanley C. Smallwood, Asst. Dist. Atty., and Karma Dudleigh, Deputy Dist. Atty., all of Oakland, for respondent. George F. Sharp, of Oakland, for Ann Wilson.

Respondent in its petition for a rehearing attacks the opinion filed herein as containing “erroneous statements of material facts” and as “based upon erroneous statements of the law.” Respondent questions particularly the statement in the opinion [143 P.2d 402, 403] that “It is conceded here that Carmen Arias, the minor child here involved, had resided and was domiciled in Stanislaus County for six years prior to the appointment of the guardians,” and asserts that it made no such concession. We may have misunderstood what respondent conceded, but the concession is apparent from the pleadings themselves. The petition for the writ of prohibition alleges in paragraph I that petitioners have been residents of Stanislaus County for ten years immediately last past and this allegation is not denied by the answer. The petition for a writ of habeas corpus, which appears in a supplement to the answer, sets forth that approximately four years ago Ann Wilson, the mother, placed the child in the care of the Milanis, petitioners herein, and that the said child has remained in their care ever since; and there is nowhere in said petition for habeas corpus or in said answer any allegation that said minor child is, or ever was, a resident of Alameda County. We will, however, modify our opinion by striking out the words, “It is conceded here” and substituting in lieu thereof the words, “It must be conceded upon the record here.”

We believe the opinion correctly states the law that where the Superior Court of one county in a guardianship proceeding has determined that a minor child is a resident of that county, that it is a proper case for the appointment of a guardian and has appointed guardians for said minor child, the Superior Court of another county may not proceed to hear a petition for a writ of habeas corpus filed therein after the filing of the petition for guardianship, which petition for habeas corpus seeks to take the custody of the minor from the guardians. As stated in the opinion, any other holding would lead to absurd results and is not supported by either reason or authority.

With the modification hereinbefore indicated, the petition for a rehearing is denied.

PER CURIAM.

Hearing denied; SHENK and CARTER, JJ., dissenting.