SACKS v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1947)

This is an original application to this court brought by Allie Walters Sacks, directed to the Superior Court of the County of Los Angeles, praying for a writ of prohibition requiring said superior court to desist and refrain from all further proceedings in an incompetency matter instituted against petitioner, and in which proceeding it is alleged respondent court will proceed upon an alias citation issued by the clerk of said court allegedly ‘without any order of said respondent court and acting solely upon his own motion and of his own free will.’

So far as pertient to a disposition of the present controversy, petitioner asserts in her petition that on July 16, 1946 there was filed in respondent court a petition for the appointment of a guardian of her person and estate. Thereupon, pursuant to the provisions of section 1461 of the Probate Code, the clerk of respondent court set August 12, 1946, at 9:30 a.m., in department 25 of respondent court, as the time and place for the hearing of said petition, and as further required by the aforesaid Probate Code section, issued a citation. Thereafter, on July 30, 1946, upon representation being made that the original citation had been lost, an order was made by a judge of respondent court directing the clerk to issue an alias citation, returnable at the same time and place as that set forth in the original citation.

When the matter came on for hearing on August 12, 1946, petitioner, the citee named in said citation and alias citation not having been served with process, was not in court, and the matter was continued to August 19, 1946 on which date, although petitioner, the citee named in said citation and said alias citation, had not yet been served with said process and was not present in court (although she was physically able to have attended such court), respondent court proceeded to conduct a hearing based upon the foregoing original citation and alias citation, and then and there made its order adjudging that this petitioner was an incompetent person and appointed a guardian of her estate. That at such hearing the court directed that insofar as the petition sought the appointment of a guardian of the person of this petitioner, that matter should be continued to September 16, 1946, and directed that an alias citation be issued by the clerk returnable on the last-mentioned date, requiring petitioner herein to appear and then and there show cause why an order should not be made appointing a guardian of her person. Petitioner herein further alleges that when the matter was called for hearing on September 16, 1946 no showing was made that the alias citation had been served upon her and that the court then made its order that the petition, insofar as it sought the appointment of a guardian for the person of petitioner herein, should be marked ‘off calendar.’

Petitioner further alleges that subsequent to September 16, 1946, no order of respondent court has ever been made directing that the foregoing petition, insofar as it related to the appointment of a guardian of the person of petitioner herein, should be restored to the calendar of respondent court, and that no order has at any time been made directing that the clerk should issue any alias citation ‘or any other appropriate process to be served upon this petitioner in connection with said matter and proceeding except as hereinbefore recited.’

Petitioner then alleges that on March 31, 1947, she instituted in this court an original proceeding in prohibition to restrain the respondent superior court and the Honorable Newcomb Condee, as a judge thereof, from proceeding further with respect to the petition for appointment of a guardian, based upon the foregoing order of August 19, 1946, adjudging this petitioner to be an incompetent person and appointing a guardian of her estate. It is then alleged by petitioner that while said prohibition proceeding was pending in this court and undetermined therein, the clerk of respondent superior court, on or about May 1, 1947, ‘without any order of said respondent court, and acting solely upon his own motion and of his own free will, issued a new citation with reference to said petition * * *, directing and requiring this petitioner to appear before respondent court on May 15, 1947 * * *, then and there to show cause why this petitioner should not be adjudged an incompetent person’ and why a guardian should not be appointed both of her person and of her estate in accordance with the original petition on file. It is then alleged that on May 15, 1947, when said citation was returnable, petitioner appeared in respondent court in person and by her attorneys and objected to respondent court taking any steps or proceeding with respect to said citation by reason of the pendency of the prohibition proceeding in this court and because of the alternative writ of prohibition issued by us. Thereupon, respondent superior court made its order that all proceedings with respect to said citation should be continued to June 5, 1947.

It is then alleged by petitioner that on May 21, 1947, this court rendered its decision wherein it was held that the order of August 19, 1946, purporting to adjudicate that petitioner herein was an incompetent person and appointing a guardian of her estate, was without authority, in excess of the jurisdiction of respondent court and void, and that said respondent court should be restrained from further actions and proceedings based upon said order, Sacks v. Superior Court, 79 Cal.App.2d 806, 180 P.2d 922, petition for hearing in the Supreme Court denied July 17, 1947.

It is further alleged in the petition herein that when the petition based upon the citation issued by the clerk of respondent court ‘of his own free will and without any order of the court for the issuance of said citation’ came on for hearing on June 5, 1947, petitioner and her attorneys appeared before respondent court, objected to any proceedings based upon said purported citation upon the ground that said citation was a nullity and void because the clerk had neither statutory authority nor authority by order of court for the issuance of said citation. Thereupon, the matter was continued for further hearing until July 11, 1946, upon which date respondent court overruled the objection of petitioner with respect to said citation and ordered that the matter be continued to July 18, 1947, at which time it is alleged that the Honorable Newcomb Condee, as judge of respondent court ‘stated that said matter would be sent to the presiding judge for immediate assignment for trial based upon said purported citation.’

Upon the filing of the foreoging petition herein, this court made its order directing the ‘issuance of an alternative writ of prohibition directing respondent court to refrain from taking any further proceedings based upon the citation allegedly issued as aforesaid by the clerk of respondent court on May 1, 1947, or to show cause why a peremptory writ should not issue.

Pursuant to the aforesaid alternative writ of prohibition respondent court filed its return and answer thereto wherein no denial is made of the material allegations contained in the foregoing petition filed herein except insofar as petitioner alleges that no order of respondent court has ever been made directing that the petition for an appointment of a guardian insofar as it related to the appointment of a guardian of the person of petitioner is concerned, should be restored to the calendar of said court, and that no order has been made directing that the clerk should issue an alias citation. Respondent court in answer thereto alleges ‘that neither petitioner Allie Walters Sacks, nor her counsel have or conceivably could have sufficient information to support’ such allegations, and ‘this respondent has no sufficient information or belief in the matter whereby it may answer’ such allegations, ‘and therefore, on that ground denies' the same.

The first ground upon which petitioner asks for a peremptory writ of prohibition is that there is no authority for the issuance by the clerk of an alias or new citation in a proceeding to adjudge one an incompetent person without an order of court where an original citation has been issued and the issues thereon tried.

Section 1461 of the Probate Code provides the procedure whereby any relative or friend may seek the appointment of a guardian for an alleged insane or incompetent person. After setting forth such procedure the section then goes on to provide that ‘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.’ The manner in which the citation shall be served and in which the hearing shall be conducted are then provided. We are satisfied that section 1461 of the Probate Code gives no authority to the clerk to issue an alias citation or to do other than, upon the filing of a petition for an appointment of a guardian to ‘thereupon’ set the cause for hearing and issue a citation. The record herein discloses that immediately after the filing of the petition in July, 1946, the clerk of respondent court exercised the foregoing authority vested in him by section 1461 of the Probate Code, issued a citation, which was heard and determined in part and marked ‘off calendar’ as to the residue.

We are therefore confronted with the question of whether by his issuance of the original citation the clerk exhausted completely all statutory authority vested in him for the issuance of any citation.

The issuance of process is not a judicial but is rather a ministerial act or duty. 50 C.J. 449. A multitude of cases sustain the statement that a purely ministerial act is void unless the officer performing it conforms strictly to the provisions of the statute which is the measure of his authority. Farrar v. Steenbergh, 173 Cal. 94, 159 P. 707; Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018; Baird v. Smith, 216 Cal. 408, 14 P.2d 749; Da Aranje v. Rodriques, 50 Cal.App.2d 425, 431, 123 P.2d 154; Spaulding & Co. v. Chapin, 37 Cal.App. 573, 174 P. 334; Kelly v. Van Austin, 17 Cal. 564; Old Settlers Inv. Co. v. White, 158 Cal. 236, 110 P. 922.

We do not wish to be understood as holding that under the circumstances here present the court itself was without authority to make an order for the issuance of the alias citation here under attack simply because section 1461 of the Probate Code or no other section of that code makes provision for the issuance of such process, because the courts, being vested by the Constitution with jurisdiction of actions such as the one before us, could frame suitable writs and direct a reasonable mode of service. In other words, the power is inherent in the courts outside of any statute to issue such further process as will bring the parties before it in an action over which it has jurisdiction. Section 187 of the Code of Civil Procedure expressly confers this power when necessary to the exercise of the court's jurisdiction. McKendrick v. Western Zinc Mining Co., 165 Cal. 24, 29, 30, 130 P. 865; United States Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S.E. 342, 344. While in the instant proceeding the court recognised this right and exercised it in the issuance of other alias citations herein, yet no such order was made prior to the issuance of the alias citation upon which the court now seeks to proceed. Such is the emphatic allegation in the petition herein and the same is denied by respondent court only because of ‘no sufficient information or belief.’ This denial we consider as totally insufficient because it amounts to no more than respondent court saying it has no information or belief concerning its own records. Insofar as section 1461 of the Probate Code is concerned, we are satisfied that the issuance of the alias citation, about which we are here concerned, was a nullity. That in the absence of some express order of the court, the clerk was without authority to issue more than the original citation authorized by the foregoing code section. When he issued that citation his ministerial power to issue was exhausted. Peck v. La Roche, 86 Ga. 314, 12 S.E. 638.

The cases cited by respondent court are not helpful in solving the question now before us because they simply support the proposition that a new citation may be issued pursuant to a judicial order directing its issuance. In the case at bar, as we have pointed out, there was no such order.

While it is true that deficiency in process may be waived in the ordinary case, this is not such a case. It is a proceeding wherein the citee was alleged by the petition to be an incompetent person. In such proceedings neither the alleged incompetent nor his attorney is legally entitled to waive the sufficiency of the process against him. Snyder v. Superior Court, 206 Cal. 346, 349, 274 P. 337, and cases therein cited.

Respondents, however, cite and place firm reliance upon section 1207 of the Probate Code, asserting that this section furnishes authority for the clerk to issue the alias citation without an order of court. We fail to perceive the force of respondents' argument. In the first place, section 1207 relates to an original citation and has no reference to an alias citation. Secondly, section 1207 is directly connected with and has reference to section 1206 of the Probate Code. The last-named section provides that ‘when personal notice is required, and no mode of giving it is prescribed by this code’ (emphasis added), it must be given by citation. Section 1207 then provides that ‘the’ citation may be issued in a certain manner, manifestly referring to ‘the’ citation prescribed in section 1206. The section just named comes into operation only when personal service is required, and when ‘no mode of giving it is prescribed by this code.’ Section 1461, which has to do with incompetency proceedings, is definite and unequivocal as to two things. The first requires that personal service be made, and then particularly prescribes ‘the mode’ of giving it. Therefore, it seems to us that while section 1207 is contained in a series of sections relating to the character of notice required to be given in probate proceedings, it bears no reference to incompetency proceedings because section 1461 of the Probate Code provides fully for the kind of notice, the character of service, and the ‘mode’ of giving it, and is a part of chapter IV of the Probate Code, which sets up a complete plan and method for use in declaring a person incompetent.

We are cited by respondents to the case of In re Guardianship of Lyle, 77 Cal.App.2d 153, 174 P.2d 906, in support of their claim that notwithstanding the fact that the court marked the proceeding ‘off calender’ it still retained jurisdiction. But nowhere in the cited case do we find any authority for the clerk of the court, of his own volition, to restore a cause, so marked, to the calender. In fact, the holding in the Lyle case is that once a case is marked ‘off calendar’ the court retains jurisdiction to restore the cause to the calender ‘on motion of one or more of the litigants or on the court's own motion.’ The restoration of the cause to the calendar must, therefore, be accomplished by direction or order of the court.

Furthermore, in the matter now before us the court acquired no jurisdiction of this petitioner through the first and original citation issued. In the decision rendered by this court in Sacks v. Superior Court, supra, it was held that the steps taken by respondent court in August and September, 1946, were totally void. In such a situation, In re Guardianship of Lyle, supra, is not helpful.

Finally, respondents assert that prohibition is not the proper remedy. The cases of Snyder v. Superior Court, supra, and Sacks v. Superior Court, supra, hold that compliance with section 1461 of the Probate Code is jurisdictional. Where, as here, there has been no compliance therewith, prohibition will lie.

Let the peremptory writ issue as prayed for.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.