SCHNECK v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO (1941)

On the 14th day of August, 1939, the respondent court made an order appointing a guardian of the person of Celia Schneck, an incompetent person, and on the same date it made another order appointing a guardian of her estate. On October 7, 1940, Celia Schneck, by J.W. Ehrlich, her guardian ad litem, commenced a proceeding in the Supreme Court asking for a writ of review to have said orders annulled. A writ was issued and the respondents filed a return thereto. Later the proceeding was transferred to this court for a hearing and determination.

The petitioner contends (1) the superior court has no jurisdiction to hear proceedings to declare a person incompetent and appoint guardians unless the alleged incompetent is present in court, or her inability to be present is certified to by the affidavit of and a certificate of a duly licensed physician and surgeon; (2) the orders appointing guardians are void because there was no finding that Celia Schneck was an incompetent nor was there any adjudication that she was an incompetent person; and (3) the service upon the alleged incompetent was void because a copy of the petition was not served with the citation. The respondents call to our attention that both of the orders made on August 14, 1939, were appealable orders. Probate Code, sec. 1630. Continuing they assert that it is settled by a long line of decision that certiorari does not lie where there is an appeal or any other plain, speedy and adequate remedy even in the cases where the lower court exceeded its jurisdiction. They assert that the fact a petitioner has allowed his right of appeal to expire does not entitle him to a writ of review, unless there was a lack of notice originally or where the circumstances are aggravated and justify immediate relief. They further claim that the facts in the record before us do not bring this case within any of those exceptions. Postal etc., Co. v. Superior Court, 22 Cal.App. 770, 772, 136 P. 538 et seq. The petitioner answers by citing Grinbaum v. Superior Court, 192 Cal. 528, 221 P. 635, 647. That case, like the present, involved a proceeding appointing guardians for an incompetent person. However, the facts are clearly distinguishable. Mrs. Grinbaum had been a resident of San Francisco. While visiting in Europe she became insane. By an order duly made by the proper court in Germany she was adjudged an insane person. A similar order was made by the proper court in the republic of Switzerland. While those orders remained in full force and effect, and while she was still detained in Europe, guardians of her person and estate were appointed by the superior court of the state of California in and for the city and county of San Francisco. At no time was any notice or process served on Mrs. Grinbaum in any manner whatsoever. The contention which these respondents make was made in the Grinbaum case. In reply to the contention that Mrs. Grinbaum had another remedy to-wit, an appeal, the court said: “As to the first of these remedies [an appeal], it is conceded that the time has long gone by for its exercise, and it is obvious from the state of this record that the petitioner neither had nor was in any condition to receive notice of the making of such order or of the defects in the same during the statutory time when such appeal might have been taken.” Further on in the decision Mr. Chief Justice Wilbur, speaking on the same contention, said: “It clearly appears that, at the time of the appointment of the Mercantile Trust Company, Mrs. Grinbaum was in fact insane, and that she continued to be so for many years thereafter. It further appears that her insanity is of such type that actual notice to her of the pendency of the proceeding for the appointment of a guardian in California would have no effect whatever upon her; that is to say, she was incapable mentally of receiving notice, and whatever form the notice may have taken her mentality was so clouded that she would not have understood or appreciated the nature or effect of the notice.” It thus clearly appears that the rule in the Grinbaum case rested on the special facts of that case and brought it within the exception to the general rule. (4 Cal.Jur. 1056.) The Supreme Court has so construed the decision on several occasions. Erickson v. Municipal Court, 219 Cal. 737, 740, 29 P.2d 192; State Board of Equalization v. Superior Ct., 9 Cal.2d 252, 255, 70 P.2d 482; see, also, Ivory v. Superior Court, 12 Cal.2d 455, 460, 85 P.2d 894.

In the instant case the record does not disclose any special circumstances excusing the failure of Celia Schneck to exercise her right of appeal. The facts are quite otherwise. The record shows that she is a woman about forty-three years of age; that some years ago she had syphilis; that she still suffers from the effects thereof; and that one of the effects causes her to suffer from aphasia. That affliction is progressing; however, at the time of the hearing, according to the report made by Dr. Stockton, her mentality was not disturbed excepting about ten per cent of the time. During these mental attacks she was decidedly incompetent. During the remaining ninety per cent of the time she was entirely normal. The record further shows that she was duly notified of the hearing of the application to appoint a guardian. She was requested to go to court but refused to do so. About thirty days thereafter she filed a petition asking to be restored to competency. At least at that time she had full knowledge that the orders under attack had been made and that she fully comprehended the effect thereof. Therefore, as stated above, the instant case does not disclose any special circumstances bringing it within the exception. (4 Cal.Jur. 1056.)

As stated above she was duly notified of the hearing but refused to attend. When the hearing was called on August 14, 1939, Mr. Lauricella, the attorney for the guardian, took the stand as a witness and at once disclosed the fact that Mrs. Schneck was not present, that she had been served with notice and had been requested to attend but that she refused to go to court. Thereupon he asked to be advised what to do in the premises. In order to determine that question the trial court heard Mr. Lauricella and it also heard the testimony of Dr. Firestone, Dr. Hirschfeld, and Mr. Landi, who was applying for letters. Under the circumstances the trial court had the authority (1) to proceed as it did, (2) to order a continuance, (3) to issue a bench warrant to compel her attendance, or (4) to go to her apartment and continue the hearing at that place. It had the jurisdiction and it was its duty as a court of chancery to determine which rule of procedure to adopt. Sullivan v. Dunne, 198 Cal. 183, 189, 244 P. 343. But the refusal of the petitioner, after service of the citation, to attend on the court, did not invalidate the decree. Chaloner v. Sherman, 2 Cir., 215 F. 867, 872, affirmed 242 U.S. 455, 37 S.Ct. 136, 61 L.Ed. 427; Re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 91 A.L.R. 74, 78. Such statements are not at variance with the doctrine stated in Monks v. Duffle, 163 Ark. 118, 259 S.W. 735. That is an Arkansas decision. In that state the statute (sec. 5829 of Crawford & Moses' Digest) does not provide for the service of a citation, but provides the alleged incompetent shall “* be brought before [the] court *.” Manifestly such statute provides for the most certain kind of notice and also if it is not complied with the court will have acquired no jurisdiction, by notice or otherwise, of the incompetent. The most that can be said is that the trial court possibly erred but not that it exceeded its jurisdiction.

The attack that the orders complained of do not recite that Mrs. Schneck is incompetent has no merit. Under the plain terms of the statute, Probate Code, sec. 1220, it was not necessary that said order should recite the existence of facts upon which jurisdiction of the court rested. The effect of a writ of review is to bring up a complete transcript of the evidence. Schwarz v. Superior Court, 111 Cal. 106, 43 P. 580. If an inspection of the record discloses there was evidence supporting the orders of the trial court they must be affirmed—finding or no finding. Estate of Paulsen, 179 Cal. 528, 530, 178 P. 143. If we assume the trial court should have made a finding that Mrs. Schneck was incompetent failure to do so was a mere irregularity and not an act in excess of jurisdiction. Simon v. Craft, 182 U.S. 427, 437, 21 S.Ct. 836, 45 L.Ed. 1165.

Neither do we find merit in the contention that the petition should have been served on Mrs. Schneck, Section 1461 of the Probate Code is not so worded. It contains the direction that the service should be made “* in the same manner as provided by law for service of summons”. A summons may be served by delivering a copy thereof. Sec. 410, Code Civ.Proc. True it is that said section directs that a copy of the complaint should be served therewith. If the service is not complete it can be attacked by a motion to quash. 50 C.J. 587. However, no authority is cited to the effect that a failure to serve a copy of the complaint constitutes a want of jurisdiction. It is argued that the same practice should be followed in serving the petition as in serving the complaint. But it is obvious that such is not the fact. A complaint is required to contain a statement of the facts constituting plaintiff's cause of action. Information of such contents is necessary for the defendant to prepare his answer. But in a proceeding under Probate Code, sec. 1461, the petition merely advises that an inquiry is to be made. Such fact is, in effect, also contained in the citation.

After the writ was served on respondents they appeared and on November 12, 1940, they filed a full return as commanded by said writ. On December 6, 1940, they filed a document “Return and Answer”. That document contains some denials of allegations contained in the petition, some affirmative allegations, and it also has attached to it (1) an affidavit made by Solomon Lande on December 2, 1940; (2) an affidavit made by Dr. Fred Firestone on December 2, 1940; (3) an affidavit made by Laura Sunseri on November 27, 1940; and (4) a photostatic copy of a letter written by Dr. Andrew B. Stockton to the trial judge on November 12, 1940. On December 9, 1940, when this proceeding was called for hearing, the petitioner filed a written motion to strike out said return and answer filed December 6, 1940, and each of said four documents. Said motion was made and submitted. Comparing the dates, it is manifest said documents attached to said answer were not before the trial court on August 14, 1939, when it made the orders complained of, and therefore they constituted no part of the proceedings in the trial court. Those are the specific documents numbered above 1, 2, 3 and 4. As to them the motion is granted. However, the motion as to the return and answer is denied. The petitioner's application was in form both a petition for a writ of review and for a writ of mandamus. On the hearing the application for a writ of mandamus was abandoned. Conceding that a return and answer is improper in a proceeding to obtain a writ of review, such a document is manifestly proper in a proceeding to obtain a writ of mandamus.

The order of the trial court appointing a guardian of the person, and the order appointing a guardian of the estate of the petitioner are affirmed.

STURTEVANT, Justice.

We concur: NOURSE, P.J.; SPENCE, J.