IN RE: KAY'S GUARDIANSHIP.

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District Court of Appeal, First District, Division 2, California.

IN RE: KAY'S GUARDIANSHIP. KAY v. SUPERIOR COURT OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 13231.

Decided: August 23, 1946

Henry J. Rogers and Elden C. Friel, both of San Francisco, for petitioner. Cushing & Cushing, Cullinan, Trowbridge & Gorrill, of San Francisco, for respondent.

In this proceeding for a writ of certiorari the petitioner seeks an annulment of an order of confirmation of the guardian's sale of his home property.

Prior to 1940 petitioner, his wife and two children lived at 2600 Broadway street in San Francisco in the family home which petitioner constructed about 1937. In 1940 petitioner's wife was adjudged mentally incompetent and is still confined in a mental institution. In December, 1945, petitioner was adjudged mentally incompetent and committed to the Napa State Hospital from which in March, 1946, he was transferred to the United States Veterans Administration at Palo Alto. The Anglo California Bank was duly appointed guardian of both incompetents. In March, 1946, the guardian, after due notice, sold the home property, exclusive of the furniture, for $40,000 and the hearing for confirmation of the sale was duly noticed and set for May 3, 1946. In the meantime the petitioner was paroled from the mental institution; he appeared in person and by an attorney in the confirmation proceedings and requested continuances until he was able to procure a full discharge and an order of restoration to mental capacity. Short continuances were granted until May 16th, when the order of confirmation was entered. On May 13th the petitioner was discharged from the mental hospital as fully cured. On June 7th, in another department of the superior court, the petitioner was duly adjudged competent and capable of taking care of his affairs, the order appointing the guardian was set aside, the letters of guardianship were revoked, and the guardian was ordered to restore to the petitioner all the estate in its possession. No appeal was taken from this order and the time for an appeal has expired.

This proceeding presents the two questions whether certiorari is the proper remedy to review the order of confirmation, and whether the order should be annulled as in excess of the power and jurisdiction of the respondent court. We will consider the questions in the inverse order of their presentation. A related question, which is not argued in the briefs, is this: Since the judgment of June 7th is now final, and the order here under review has not become final, is the question of the validity of the order under review a moot one since the final judgment removed the guardian and ordered him to restore the property to the owner? We do not decide this question since it has not been argued, but we refer to it as an important consideration in relation to the equities involved because since one judgment orders the guardian to restore the property to the owner and another orders the guardian to execute a deed of the same property to another there would be a confusion of title which would impel us to seek some remedy in order that substantial justice may be done.

On the question of jurisdiction or power of the court to confirm the sale the applicable statute is section 1530 of the Probate Code, which reads:

‘If the income of an estate under guardianship is insufficient for the support, maintenance and education of the ward or of such members of his family as he is legally obligated to support and maintain, including his care, treatment and support, if confined in a State hospital for the insane, or if the personal estate and the income from the real estate is insufficient to pay his debts, or if it is for the advantage, benefit, and best interests of the estate or ward or of such members of his family as he is legally bound to support and maintain, his guardian may sell any of his real or personal property, or mortgage or give a deed of trust upon any of his real property for any of such purposes, subject to authorization, confirmation or direction by the court as hereinafter provided.’

Section 785 of the Probate Code provides: ‘Upon the hearing the court must examine into the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and witnesses in relation to the sale; and if it appears to the court that good reason existed for the sale * * * the court shall make an order confirming the sale and directing conveyances to be executed; otherwise it shall vacate the sale and direct another to be had * * *.’ (The emphasis of both sections is ours.)

Thus a sale may be made ‘if’ the income is insufficient to support the ward and his family or to pay his debts, or the sale is for the benefit and best interest of the ward or his family. But unless it appears at the hearing that these reasons exist the court ‘shall’ vacate the sale.

At the hearing for confirmation of the sale it appeared that the petitioner had been discharged as fully recovered, that he was then of sound mind and capable of managing his own affairs, that the home property was the only place where he had to live, and that to deprive him of his home might cause him other mental disturbance. It is alleged in the petition and not denied that he was possessed of stocks of the fair market value of $15,000, of cash in excess of $4,000, and of a monthly income of $500; that his wife and children were well cared for and the sale was not necessary for their support and maintenance. All this evidence and all these allegations stand uncontradicted. The guardian testified at the hearing that if he had known that petitioner was about to be restored to capacity he would not have made any effort to sell the property. No evidence was offered tending to show that it was for the best interest of the estate to make the sale. The guardian's ‘belief’ was not supported by any facts. The case then comes to this court on the undisputed showing that (1) the income was not insufficient to support the ward and his family, (2) that it was not insufficient to pay his debts, and (3) that the sale was not for the best interests of the ward or his family. On the case so made the order of confirmation was plainly in excess of the power and jurisdiction of the court and this is not seriously controverted by respondents. Their position is, as already stated, that certiorari does not lie. If this be true then it must follow that the petitioner is,—according to respondents—wholly without remedy.

If the proceedings were in probate certiorari would not lie because the right of appeal from such orders is expressly granted in section 1630 of the Probate Code. But such right is denied to an aggrieved party in guardianship proceedings. Guardianship of Reser, 57 Cal.App.2d 935, 135 P.2d 709. Hence this is a case where ‘there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.’ Sec. 1068, C.C.P.

A great amount of language has found its way into the books on the question when a writ of certiorari will lie and when not. Granting that the power and jurisdiction of the superior court in guardianship proceedings, like that of the probate court in relation to estates of decedents, is special and limited by the terms of the statutory grant, it is settled that a failure to follow the procedure prescribed is an excess of jurisdiction subject to review by certiorari when no other remedy exists. Olcese v. Superior Court, 210 Cal. 566, 292 P. 964. This principle is plainly stated in Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291, 109 P.2d 942, 948, 132 A.L.R. 715, as follows: ‘Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.’ (Emphasis ours.) In Rodman v. Superior Court, 13 Cal.2d 262, 269, 89 P.2d 109, 112, with like clarity, the court said: ‘* * * some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.’

In simple language the recent decisions follow the express language of section 1068 of the Code of Civil Procedure granting a ‘review’ where there is no appeal and no other adequate remedy to relieve the petitioner from an order which deprives him of a substantial legal right. In the ordinary case such an adverse judgment or order may be corrected on appeal. On certiorari, though mere error is insufficient, error which has denied to the petitioner the procedure prescribed by law is deemed an excess of jurisdiction subject to correction, or annulment, on review.

Here, if the statute permitted an appeal from the order of confirmation a reviewing court could not escape the conclusion that the order was breach of discretion. It would then reverse the order on that ground. We arrive at the same conclusion in this proceeding.

The order is annulled.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur. Hearing granted; EDMONDS, J., absent.