Savage v. Superior Court

[522]

KNIGHT, J.

Petitioner seeks a writ of mandate to compel the settlement of a bill of exceptions proposed by petitioner after having taken an appeal from a judgment rendered by the respondent court in the exercise of its juvenile court jurisdiction.

The judgment was rendered in a proceeding instituted by petitioner as guardian of the estates and persons of two orphaned children named Dorothy and Bernard Jones, wherein petitioner asked that the children be declared wards of the court. At that time the children were aged fourteen and ten years respectively, and for approximately a year and a half had been living with petitioner and his wife at their home in San Francisco. Petitioner was present at the court hearings which took place as the result of the filing of the petition in the juvenile court, and he was also represented by an attorney. At the final hearing and before the cause was submitted he asked leave to withdraw his petition and to dismiss the proceeding, but his request was denied; whereupon and on March 29, 1939, the court adjudged the children to be wards of the court and committed them to the custody of the chief probation officer, thereby removing the children from the home of petitioner and depriving him of their future care and custody. Judgment was entered accordingly, and within sixty days thereafter, to wit, on May 25, 1939, petitioner served and filed notice of appeal therefrom. However, no written notice of the entry of the judgment was ever served on petitioner or his attorney, nor did either of them in writing, or by oral stipulation made in open court and entered in the minutes, or otherwise, ever waive such written notice; and on September 11, 1939, petitioner filed his draft of a bill of exceptions. The draft had been served on the district attorney before it was filed, but no amendments thereto were proposed; and during the month of October, 1939, the draft was presented to the judge of said court for settlement, with the result that he refused to take any action toward the settlement thereof. In addition to the foregoing facts and incidental thereto it may be stated that about the time petitioner appealed from said judgment he sought by way of

habeas corpus

to have the judgment annulled; but after a hearing and on August 10, 1939, the