IN RE: ANDREWS' GUARDIANSHIP. (1940)

This is an appeal from two orders of the superior court of San Diego county, the first of which was made on April 22, 1938, adjudging the appellant incompetent and appointing respondent bank as guardian of her estate, while the last-named order was one made April 13, 1939, denying appellant's petition to vacate the previously entered order appointing a guardian for her estate.

The pertinent facts are that on or about April 7, 1938, proceedings were had upon a complaint which sought commitment of appellant to a state institution as an alcoholic. After a hearing at the psychopathic ward on April 14, she was sent home and the hearing continued one year, a psychopathic parole officer being designated “to look after her to some extent”. Mrs. Andrews was represented at this hearing by attorney Keith Ferguson. Two days thereafter, on April 16, Mr. Ferguson filed on behalf of John B. Andrews, husband of appellant, a petition alleging that the latter was incompetent and praying for the appointment of a guardian of her estate. A citation was issued, and in the afternoon of that day Mr. Ferguson personally served the same upon Mrs. Andrews. Mr. Ferguson told Mrs. Andrews at that time that if her physician believed that the state of her health was such that she should not appear they could substitute the affidavit of her physician to that effect, and that it seemed to him a proper case for the affidavit to be used. Mrs. Andrews asked if she should contact her doctor, but Mr. Ferguson said he knew her physician, Dr. Diefenbach, and would speak to him; that he presumed he would be willing to make such an affidavit. On April 22, the day set for the hearing, Mr. Ferguson prepared an affidavit and sent it to Dr. Diefenbach, who signed it after a telephone conversation with Mr. Ferguson. It was then returned to the office of Mr. Ferguson, who affixed his signature and notarial seal thereto and presented it at the hearing. The affidavit contained the statement “that Juliette B. Andrews * is under his” (affiant's) “professional care; that she is confined to her home in the personal charge of nurses at all times; that in the opinion of affiant, she is not able to attend a court hearing on Friday, April 22, 1938, by reason of her physical condition”. The doctor testified at the hearing on the petition to vacate the order appointing the guardian that he had last seen Mrs. Andrews on March 15, but that his affidavit was based on “knowing the patient since 1936; seeing her through several illnesses; letters which I had from Doctor Kerr of the University of California * and also a neurologist whom I don't recall”; also reports from Dr. Yuskis as to her alcoholism and inability to eat; and extreme nervousness and inability to sleep at night. The doctor further testified:

“I knew she was up around the house, at least this is my report of the nurse. I knew she had been out for rides. I urged that. I knew she was * very nervous and very restless *

“Q. You have not given us the ultimate conclusion that you reached as to whether she was in condition to be produced in court or not? A. Physically she could have been taken to court. *

“Q. What did you apprehend, as a professional man, would probably happen? * A. An extreme nervous tension, one of these cataleptic or epileptic seizures, whichever they were, and strain on a woman who had gone through considerable, with a serious illness shortly in the background. * I thought she should not be produced.

“Q. Why not? A. On the ground just stated, and from the fact that this was presumably settled and it was agreeable to her to go through with this procedure.”

On cross-examination he testified: “Q. * You were under the impression, at least under the belief at the time you made this affidavit, that Mrs. Andrews had consented to the appointment of a guardian of her property, and that this proceeding was agreeable to her? A. That is what I was told and believed.”

The doctor further testified that he never saw Mr. Ferguson in person; that he thought the incompetency hearing was merely “a formal routine matter”.

In its decision the trial court found that Mrs. Andrews was well able to attend the guardianship hearing, had she so desired.

It is stated in respondent's brief and not denied, that since the adverse ruling upon her application to revoke the order appointing the guardian, appellant on her own petition has been restored to competency.

The appeal from the order appointing the guardian must be dismissed, for the reason that the same was not taken within the time prescribed by law. Probate Code, § 1233; Code Civ.Proc., § 939. This court is therefore without jurisdiction to consider the appeal on the merits. Williams v. Long, 130 Cal. 58, 62 P. 264, 80 Am.St.Rep. 68; Lawson v. Guild, 215 Cal. 378, 10 P.2d 459.

Appellant's claim that the order denying her petition to set aside the decree appointing the guardian must be reversed because the court was without jurisdiction, cannot be upheld. It is true, as urged by appellant, that section 1461 of the Probate Code provides that the alleged incompetent “must be produced at the hearing”, but that such attendance may be excused upon the filing of an affidavit by a physician that by reason by physical disability such person is unable to attend. However, it is not the presence of the alleged incompetent at the hearing that confers jurisdiction. That is acquired when the alleged incompetent has legal notice of the proceedings. Even though the determination of the issue presented at the hearing as to her competency was erroneous, that does not show a lack of jurisdiction. Due and legal service upon the alleged incompetent of the notice in conformity with the provisions of section 1461 of the Probate Code in the instant case is unquestionably established. When, therefore, appellant's husband filed the petition and service of the notice required by the statute was made upon appellant, the court acquired jurisdiction. In re Pozzo's Guardianship, 104 Cal.App. 11, 285 P. 330; Halett v. Patrick, 49 Cal. 590; Snyder v. Superior Court, 206 Cal. 346, 274 P. 337.

It becomes unnecessary to pass upon the legality of the physician's affidavit taken through the telephone, for it is evident no prejudice resulted to appellant therefrom. Indeed, at the hearing upon the motion to vacate the guardianship order the doctor confirmed the statements made by him in his affidavit and gave his reasons for believing that the alleged incompetent should not have attended the hearing, testifying as to the consequences which in his opinion might ensue to her physical and mental well-being were she to attend. Banning v. Banning, 80 Cal. 271, 22 P. 210, 13 Am.St.Rep. 156; Fairbanks, Morse & Co. v. Getchell, 13 Cal.App. 458, 110 P. 331.

We find no merit in appellant's contention that due and legal service of the citation was not made upon her for the reason that under the old common-law rule, undisturbed by statute, an attorney may not serve a process the issuance of which was procured by him. Upon conflicting but substantial evidence, the court found that in the guardianship proceeding attorney Ferguson was acting as counsel for appellant's husband. Not being a party to the action, the attorney was competent to serve the citation. Code Civ.Proc., sec. 410; Anderson v. Goff, 72 Cal. 65, 66, 13 P. 73, 1 Am.St.Rep. 34; Sheehan v. All Persons, 80 Cal.App. 393, 252 P. 337.

Lastly, appellant urges that the order refusing to set aside the original order appointing a guardian should be reversed because the petition for such relief was timely and merited for appellant an opportunity to have a hearing upon the merits and in her presence. Conceding, but not deciding, that the court had a right in the second proceeding to set aside an order from which no appeal was taken and which for all purposes was final, such power nevertheless could be exercised only when, in the discretion of the court, the ends of justice would be thereby served. In the instant case the court resolved its discretion against appellant, and we cannot say that the court's action amounted to an abuse of discretion. The granting of such relief as to a judgment or order not void upon its face must depend somewhat upon the circumstances of each particular case, except, of course, that application for relief must be made within the time limited by section 473 of the Code of Civil Procedure. Where, as in the case before us, the applicant for relief acquiesced in the original order of guardianship for four months and permitted respondent bank as guardian to administer her estate, we would not be justified in concluding that the trial court's decision was not a fair and just exercise of its discretion.

For the reasons herein stated, the appeal from the order of April 22, 1938, appointing respondent bank as guardian is dismissed, and the order of April 13, 1939, denying the petition to vacate the aforesaid order of April 22, 1938, is affirmed.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.