IN RE: PHILLIPS' GUARDIANSHIP. (1945)

Appellants appeal from an order appointing respondent guardian of the person and estate of the minor daughter of respondent and of appellant, Donald Phillips. A previous order in this matter was reversed by this court in Guardianship of Phillips, 60 Cal.App.2d 832, 141 P.2d 773. As stated in that opinion Bertrice Phillips, the mother of Deanne Phillips, a minor, filed a petition for her appointment as guardian of said minor in the Superior Court in San Francisco. Appellants herein, who are the father and paternal grandmother of the minor, pursuant to a notice of hearing of said petition served upon them, appeared to contest the granting of respondent's petition. They made a motion to transfer the proceeding to Kern County and that motion was submitted. The court without first acting on the motion to transfer proceeded to hear the testimony on the merits of the petition for guardianship and that matter was also submitted. Thereafter the court granted the motion to transfer and the order granting that motion was reversed by this court on the prior appeal. In our opinion in that case we said (60 Cal.App.2d 836, 141 P.2d 775):

‘We do not wish to be understood as expressing any opinion as to whether the petitioner should be granted or denied but as the superior court in San Francisco must pass upon the petition upon the merits, we believe it appropriate to make certain observations. The petition alleged ‘that said minor has no estate.’ It therefore appears that appellant sought to invoke the jurisdiction of the superior court in the county in which the minor was ‘temporarily domiciled’ for the purpose of obtaining an order appointing appellant as guardian of the minor's person. It also appears that, in the divorce proceeding in the superior court in Kern County, the interlocutory decree contained provisions for the custody of the minor, which provisions may be changed by that court at any time upon a proper showing. In passing upon the petition upon the merits in the present proceeding, it will be appropriate for the superior court in San Francisco, in the exercise of its jurisdiction, to determine among other things whether under all the circumstances ‘it appears necessary or convenient’ to appoint a guardian of the person of said minor. Probate Code, sec. 1440.

‘The order appealed from is reversed with directions to the trial court to pass upon the petition upon the merits.’

Since the parties had already had a full hearing on the merits, under the order of reversal of this court the probate judge to whom the matter had already been submitted might have decided it without taking further evidence. However counsel for the petitioner Bertrice Phillips procured an order from the court setting the petition for further hearing on the merits and served notice of the time and place of such further hearing on counsel for the father and grandmother, appellants herein. Whatever their reason for such action the appellants failed to appear at this hearing.

When the matter was called for further hearing counsel for the petitioner asked and obtained leave to file an amended petition. The amendment consisted in the addition of the italicized words to the allegations of paragraph III of the original petition:

‘it is both necessary and convenient that a guardian be appointed to properly care for said minor and her estate’ and in substituting for the allegation of paragraph IV of the original petition, ‘That said minor has no estate’, the following:

‘That said minor will have estate consisting of Five Thousand Dollars ($5000.00), conditioned exclusively upon the appointment of your petitioner as the guardian of her person and estate.’

In support of these new allegations the maternal grandmother was placed on the stand and testified that she had executed an agreement with petitioner Bertrice Phillips whereby she agreed to pay $5000 to the minor, $500 upon the signing of the agreement and the balance at the rate of not less than $500 per year ‘conditioned upon the appointment of Bertrice Phillips as the guardian of the person and estate of Deanne Phillips.’ This agreement was introduced into evidence together with a cashier's check for $500 representing the initial payment under it. In answer to a question of the probate judge as to the purpose of this showing counsel for petitioner stated:

‘I feel we are entitled to make a showing of necessity and convenience. It certainly is convenient to have a guardian appointed if an estate of $5000 can be built up by the appointment of the guardian. I think it is a definite convenience and also the question of necessity. The minor would not have any estate if it were not for the appointment, and it will have an estate of $5000, and none of it will be used for maintenance or for the expenses of this proceeding, and I think that it is an important thing in the matter of convenience.’

We express no opinion on the enforceability of this apparently novel agreement or on the weight, if any, to be given to it by the probate court, particularly in view of its being conditioned on that court's deciding a contested proceeding before it in a particular way, because those questions have not been argued. It does appear, however, that counsel for respondent argued in the probate court that the existence of the agreement, including the fact of its being conditioned on the court's appointing the respondent, should be given considerable weight; and appellants were not present to meet this new issue or to argue its weight or materiality. These facts lend force to the point which appellants do make on this appeal.

That point is that it was a prejudicial abuse of the court's discretion to permit the amendment of the petition in a material particular and to receive evidence in support of the new material allegations without any notice to them that such new issues were to be tendered and considered by the court. Appellants cite Cole v. Roebling Const. Co., 156 Cal. 443, 105 P. 255; Tappendorff v. Moranda, 134 Cal. 419, 66 P. 491; Linott v. Rowland, 119 Cal. 452, 51 P. 687; Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089, 21 Am.St.Rep. 52; and Zierath v. Superior Court, 35 Cal.App. 788, 171 P. 112. These cases all announce the familiar rule that where a complaint is amended in a material particular after the default of a defendant a judgment cannot be taken against such defendant without serving the amended complaint on him and giving him an opportunity to appear and answer the new matter.

Respondent replies that under Probate Code, secs. 1440, 1441, there is no requirement that the petition for appointment, either original or amended, be served on any party, the only service required being of a notice as provided in sec. 1441. It may be remarked that no provision for filing an amended petition is expressly made in these code sections. The procedure outlined requires the filing of a petition (sec. 1440) and ‘Before making the appointment, such notice as the court or a judge thereof deems reasonable must be given * * *’ (sec. 1441). We have no doubt of the inherent power of the court to allow the filing of an amended petition or amendments to a petition already on file. But where the petition as amended alleges additional material facts it would seem logical to regard it as a new petition filed under sec. 1440 which would require a new notice under sec. 1441. The service of notice puts the party served on notice that a petition has been filed. He may examine the files and inform himself of the allegations of the petition, and having so informed himself he can determine the course which he wishes to take in the face of the allegations of the particular petition. In this respect he is in no different position than a defendant served with a complaint in a civil action. However we need not attempt to lay down any broader rule in this opinion than is necessary to decide the particular case before us.

In this case the proceeding had already become an adversary one between the parties by the appellants' appearance before the probate court on the original hearing in response to the original notice. The issues as made by the original petition were known to appellants and they had introduced their evidence in opposition to that petition. On the reversal of the order transferring the proceeding to Kern County this court directed the probate court ‘to pass upon the petition upon the merits.’ When notice of a further hearing of the matter was served on appellants' counsel they were entitled to believe that no new issues would be inquired into, and we must assume that they were satisfied to rest their case on the issues already made upon the testimony that they had produced on the first hearing. They took their chances on not being present to rebut any new evidence addressed to those issues, but they had no notice that additional issues of a material character would be raised upon the ‘further hearing.’ We believe, under the circumstances of this case, that it was an abuse of the sound discretion of the court to permit the issues to be enlarged in the material fashion in which they were without giving appellants notice of the filing of the amended petition and an opportunity to be heard in opposition to the new issues introduced.

While we have found no authority directly in point, the situation in United States Fidelity & Guaranty Co. v. Nash, 20 Wyo. 65, 124 P. 269, 270, is quite analogous. There a defendant withdrew from the trial of an action. After his withdrawal the complaint was amended in a material particular and judgment was entered against the withdrawing defendant on this amended complaint. The Supreme Court of Wyoming said in that case:

‘The refusal to take further part in the proceedings had reference to the issues then on trial. It will be presumed that the amendment of the amount sought to be recovered was made by permission of the court first had and obtained. * * * Assuming this to be so, the defendant withdrew leaving the issues just as they stood at the time.

‘If the amendment affected and changed the theory of plaintiff's right to recover * * * and we think it did—then notice ought to have been given to the defendant.’

Even more closely in point is In re Wiggins, 118 App.Div. 488, 103 N.Y.S. 518, 519. In that case after citation had been issued on a petition for letters of administration with the will annexed a second petition was filed by the same petitioner adding new material allegations and no citation was issued thereon. In reversing a surrogate's decree appointing an administrator the court said:

‘No citation was issued on this latter petition, nor does it appear that the appellant had any notice thereof. It is clear that this latter petition, improperly described as an ‘amended petition,’ has no proper place in the proceedings, and must be disregarded.'

The order appointing respondent guardian is reversed.

DOOLING, Justice pro tem.

NOURSE, P. J., and GOODELL, J., concur.