CENTRAL BANK v. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA

Reset A A Font size: Print

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

CENTRAL BANK, a corporation, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA, Respondent.

Civ. 16260.

Decided: October 15, 1954

Fitzgerald, Abbott & Beardsley, Oakland, for petitioner. Lew M. Warden, Jr., Oakland, for respondent.

In its petition for rehearing petitioner does not dispute that if it had notice of the order of the court under which the deposit with it was made it is in privity with the guardianship proceeding. It argues strenuously that ‘the probate court may not clothe itself with jurisdiction by making a finding of fact and determining the very question in issue, namely, whether or not the probate court has jurisdiction.’ This argument is answered in two sentences from Palermo Land & Water Co. v. Railroad Commission, 173 Cal. 380, 385, 160 P. 228, 230:

‘Whenever a court or board is authorized to act upon the existence of a certain state of facts, it has jurisdiction to determine the existence or non-existence of the requisite facts. 11 Cyc. 701; In re Grove Street, 61 Cal. 438, 453. Its jurisdiction cannot be affected by the circumstance that these facts are denied.’

This is the general rule not only in California but throughout the United States. 21 C.J.S., Courts, § 115, p. 177.

In re Haas, 97 Cal. 232, 31 P. 893, 32 P. 327 is not in conflict with this rule. In that case the executor claimed property against the estate, asserting that it belonged to a ward of whom he was guardian. The court pointed out that the minor ward was not before the court and held that the court sitting in probate had no jurisdiction to try title between the ward, a stranger to the estate, and the estate. No question of privity between the ward and the estate was involved. Indeed the court expressly held that the executor should not have appeared in the dual positions of guardian and executor, saying at page 234 of 97 Cal., at page 893 of 31 P.: ‘But his two positions of trust are in direct antagonism upon the question of property rights involved in this proceeding, * * * in representing both trusts he would necessarily misrepresent one.’ This case has no bearing on the question presented to us in this proceeding. The other cases cited by petitioner are equally not in point, since in none of them was the jurisdictional question of privity in issue.

Petitioner's complaint that the respondent superior court violated the alternative writ of prohibition in signing findings is not supported by the record. The superior court as part of its return certified the findings which it proposed to make if permitted to do so. We can find no impropriety in this action.

The petition for rehearing is denied.

PER CURIAM.