IN RE: WALTERS' ESTATE.

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District Court of Appeal, Second District, Division 3, California.

IN RE: WALTERS' ESTATE. SACKS v. RAUCH.

Civ. 17167.

Decided: July 07, 1950

Bodkin, Breslin & Luddy, S. V. O. Prichard, Morris Lavine, all of Los Angeles, for appellant. Ralph R. Sleeper and Harold A. Slane, Los Angeles, for respondent.

Appeal by the alleged incompetent personally and by her guardian ad litem from an order dated March 3, 1949, adjudging appellant to be an incompetent person and appointing a guardian of her estate and a separate guardian of her person. Appeal from an order, dated April 22, 1949, directing L. C. Rauch, the appointed guardian, to exercise his powers during the pendency of the then pending appeal by taking into his possession all of the real and personal property of appellant, to collect the rents and to pay to the appellant only a portion of the income.

This case originated in the Superior Court of Los Angeles County in July, 1946, with the filing of a petition for the appointment of a guardian of the estate and person of Allie Walters, also known as Allie Walters Sacks, an alleged incompetent. During the period from 1946 until the present time it has been before the appellate courts of this state on several occasions. Sacks v. Superior Court, 79 Cal.App.2d 806, 180 P.2d 922; Guardianship of Walters, 81 Cal.App.2d 684, 184 P.2d 684; Sacks v. Superior Court, 88 Cal.App.2d 808, 199 P.2d 396; Guardianship of Walters, 93 Cal.App.2d 208, 208 P.2d 713; Sacks v. Superior Court, 31 Cal.2d 537, 190 P.2d 602. A detailed statement of the facts giving rise to the controversy will be found in Guardianship of Walters, 93 Cal.App.2d 208, 208 P.2d 713.

Inasmuch as we have determined that the trial court was without jurisdiction over the person of the alleged incompetent, Allie Walters Sacks, and thus had no power to make the orders appealed from, only those facts pertinent to that question will be set forth herein. It is unfortunate that we are unable, because of the jurisdictional defect, to decide the case on the merits and endeavor to end the long history of litigation.

The record shows that Mrs. Sacks was personally served on June 2nd, 1948, with a citation requiring her to appear on June 11, 1948, and show cause why she should not be adjudged an incompetent person and why one L. C. Rauch should not be appointed guardian of her person and estate. Mrs. Sacks did not appear in court on June 11, 1948, and over the objection that the court had no jurisdiction to proceed without her, a witness was sworn and, after brief testimony, the case was adjourned to June 14, 1948. On June 11th, a bench warrant was issued commanding appellant to be present in court on June 14th, but there is no showing that it was ever served on Mrs. Sacks. On June 14th, 1948, the court was served with an alternative writ of prohibition issued by Division Two, Second Appellate District, District Court of Appeal, which provided that the superior court desist and refrain from proceeding further in said matter, and that it refrain from hearing, determining, passing upon, trying or deciding any matter in said proceeding until further order of the District Court of Appeal. Mrs. Sacks was not present in court on June 14th. The hearing was continued in open court from time to time until November 10th, at which time the petition for appointment of guardian was ordered off calendar by Judge Kauffman.

On November 24, 1948, the District Court of Appeal, Second Appellate District, Division Two, vacated the alternative writ of prohibition and denied a peremptory writ on the ground that an alleged incompetent person could not defeat the jurisdiction of the superior court by a mere refusal to respond to a citation which had been personally served upon her. Sacks v. Superior Court, 88 Cal.App.2d 808, 811, 199 P.2d 396. A petition for hearing in the Supreme Court was filed by appellant and denied by that court on January 20, 1949.

At some time subsequent to June 11, 1948, and prior to February 21, 1949, the case was ordered ‘off calendar’ by Judge Kauffman. On January 24, 1949, Judge Condee ordered that the hearing and trial of the matter be resumed on the 7th day of February, 1949. The record shows that a copy of this order was served on appellant's attorneys on the 27th and 28th days of January. No copy of the order was served, and no citation was issued or served, on Mrs. Sacks, the alleged incompetent. The matter was apparently continued until February 21, 1949, and Mrs. Sacks was present in court during the trial which culminated in the orders appealed from. At the commencement of the hearing on February 21st before Judge Condee, Mrs. Sacks' attorney objected to proceeding with the hearing upon the ground that no new citation had been issued or process served upon Mrs. Sacks, and that the court was therefore without jurisdiction, to which the court replied: ‘I think it is more tidy to keep these matters going by continuance. That was my policy. On the other hand, I think Judge Kauffman's position is probably more orthodox; that is where a matter if pending under an alternate writ of prohibition, all matters cease, and then the writ is dissolved where it is, it starts on any question where it left off, so I don't think that is a serious objection. As I say, I think the method of continuing on the calendar is a more tidy method, but it may be wrong.’ The question involved in the procedure that was followed strikes deeper than this. Below the surface lay the undiscovered question of jurisdiction.

The question which confronts us is whether, under the foregoing facts, the alleged incompetent received the notice provided for by section 1461 of the Probate Code. That section then read, in part, as follows: ‘Thereupon the clerk shall set the same for hearing by the court and issue a citation directed to said alleged insane or incompetent person setting forth the time and place of hearing so fixed by him. Said citation shall be personally served on the alleged insane or incompetent person in the same manner as provided by law for service and summons at least five days before the time of hearing. Such person, if able to attend, must be produced at the hearing, and if not able to attend by reason of physical inability, such inability must be evidenced by the affidavit and certificate of a duly licensed physician or surgeon * * *.’ Amend.Stats.1943, Ch. 473, sec. 1. (Emphasis added.)

We are of the opinion that the act of Judge Kauffman in ordering the case ‘off calendar’ terminated the instant proceeding and divested the court of the jurisdiction it had obtained over the person of Mrs. Sacks by the service of the citation upon her on June 2, 1948. The only citation ever served upon Mrs. Sacks directed her to appear on June 11, 1948. When the matter came up again on the 14th, no continuance was ‘duly had’ as was the case in Guardianship of Peterson, 84 Cal.App.2d 541, 191 P.2d 98, and in Vigne v. Superior Court, 37 Cal.App.2d 346, 99 P.2d 589. It has been consistently held in this state that the giving of the notice provided for in guardianship proceedings is jurisdictional and that without it the court has no power to adjudicate the question of the incompetency of a person before it charged with being incompetent, or to appoint a guardian of the estate of such person. Estate of Eikerenkotter's, 126 Cal. 54, 58 P. 370; McGee v. Hayes, 127 Cal. 336, 59 P. 767, 78 Am.St.Rep. 57; Estate of Schulmeyer, 171 Cal. 340, 153 P. 233; Grinbaum v. Superior Court, 192 Cal. 528, 221 P. 635; Snyder v. Superior Court, 206 Cal. 346, 349, 274 P. 337; In re Pozzo's Guardianship, 104 Cal.App. 11, 285 P. 330; Sacks v. Superior Court, 79 Cal.App.2d 807, 180 P.2d 922; Guardianship of Peterson, 84 Cal.App.2d 543, 191 P.2d 98; 14 Cal.Jur. 354, 355; 7 Cal.Jur. 10 Yr. Supp. 59; see, also, annotations, 23 A.L.R. 594; 152 A.L.R. 1247. A guardianship proceeding is a serious matter because, generally speaking, an adult person has the right to control his own person and affairs and that right should not be taken away from him except upon a showing of the statutory grounds warranting a restriction of his liberty of action for his own protection. Estate of Schulmeyer, supra; Estate of Watson, 176 Cal. 342, 168 P. 341.

The appearance of Mrs. Sacks did not constitute a waiver of the notice required by the Probate Code, sec. 1461. In McGee v. Hayes, 127 Cal. 336, 338, 59 P. 767, 768, 78 Am.St.Rep. 57, it was said that the presence of the incompetent could not meet the requirement of the statute that he should be served with notice of the hearing; and that ‘he was incapable, by reason of his incompetency, to consent to the jurisdiction of the court, or waive any of the steps necessary to confer jurisdiction upon the court, or to make any request that the petition be granted.’ If the person be not in fact incompetent, his agreement that he is incompetent does not make him so, and the statute authorizes the appointment of a guardian on this ground only where, upon notice, after full hearing and examination, it appears from the testimony that the person is in fact incapable of taking care of himself and managing his property. Guardianship of Sullivan, 143 Cal. 462, 77 P. 153; McGee v. Hayes, supra; Snyder v. Superior Court, supra. Neither can the attorney for the alleged incompetent give any such consent, for his authority is limited by the capacity of his client. Guardianship of Sullivan, supra; Sacks v. Superior Court, 79 Cal.App.2d 806, 180 P.2d 922.

It is earnestly insisted that the order should be reversed for insufficiency of evidence. With minor exceptions, it is said, the evidence on the issue of incompetency related to transactions between appellant and her husband in 1944 and 1945, and not to her ability to manage her affairs as of the time of the hearing; some four years have elapsed since this proceeding was instituted; if it be granted that appellant at one time needed a guardian to protect her from the machinations of her husband, it was shown that the occasion no longer exists since appellant's property is being well managed and her husband is attentive to her and has been proven over a period of years to have no disposition or intention to take advantage of her. All the substantial evidence, it is contended, was to the effect that appellant is a well informed and experienced woman and competent, despite her age and past mistakes, to conserve her property interests and make prudent use of her money. See Estate of Watson, 176 Cal. 342, 345, 168 P. 341; Guardianship of Waite, 14 Cal.2d 727, 731, 97 P.2d 238. We appreciate the force of the argument. Appellant was presumed to be competent at the time of the trial and prior thereto. Estate of Gordon, 142 Cal. 125, 75 P. 672; Estate of Dolbeer, 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795; Nourse v. Azvedo, 185 Cal. 47, 195 P. 669; Estate of Perkins, 195 Cal. 699, 235 P. 45; American Trust Co. v. Dixon, 26 Cal.App.2d 426, 78 P.2d 449; California Bank v. Bell, 38 Cal.App.2d 533, 101 P.2d 724; Clark v. Abrams, 49 Cal.App.2d 497, 121 P.2d 750; Wilson v. Sampson, 91 Cal.App.2d 453, 205 P.2d 753.

Evidence of transactions several years past was admissible only for its bearing upon appellant's competency at the time of the hearing.

However desirable it may be to end this prolonged litigation we think it would be inappropriate to pass upon the sufficiency of the evidence, in view of our holding that the hearing and order were void proceedings. We do not doubt that if further proceedings are had evidence will be developed fully as to appellant's competency at the time of the trial.

The appeal from the order of April 22, 1949, directing L. C. Rauch to take into possession, as guardian, the property of Mrs. Sacks, pending disposition of the present appeal, is governed by the decision in 93 Cal.App.2d 208, 208 P.2d 713, in which we held there was no evidence of any threatened loss or injury to the property of Mrs. Sacks. It was pointed out that since August, 1947, the real property had been under first class and competent management of R. A. Rowan & Co., that in appointing this agent and in cooperating with her agent Mrs. Sacks had exhibited good business judgment, and that in the absence of evidence of threatened loss or injury the order was in excess of the jurisdiction of the court in probate. Supersedeas was issued to stay proceedings under the order. For the reasons stated in that opinion and also because of our holding that the order of appointment was void, the order of April 22, 1949 must be reversed.

The orders appealed from are reversed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.