Sacks v. Superior Court

SHENK, J.

Petitioner, an alleged incompetent, seeks a writ of prohibition to restrain the superior court from taking any further proceedings against her based upon an assertedly void citation.

On July 16, 1946, Charles Bobst instituted the incompetency proceeding by applying to the superior court for the appointment of a guardian of the estate and person of petitioner. Pursuant to section 1461 of the Probate Code, the clerk immediately issued a citation. Later, on representation that the original citation had been lost, the court ordered the clerk to issue an alias citation. When the matter came on for hearing on August 12, 1946, petitioner did not appear in court because she had not been served with process, and the matter was continued to August 19th. On the latter date petitioner, although physically able to appear, still had not been served and was not present. Nevertheless the court conducted a hearing, adjudged petitioner incompetent, appointed a guardian of her estate, continued the matter of appointment of a guardian of her person to September 16, 1946, and directed the clerk to issue an alias citation. On September 16th there was no showing that the alias citation last issued had been served. The court therefore ordered that the matter of appointment of a guardian of the person

[539]

of petitioner be marked “off calendar.” It was never restored to the calendar nor was the clerk ever directed to issue a further citation or other process.

On October 17, 1946, petitioner appealed from the order of August 19th appointing a guardian of her estate. The order was appealable and stayed the power of the guardian except for certain specified purposes (Prob. Code, §§ 1630, 1631). The alleged incompetent was entitled to prosecute the appeal

(Matter of Moss,

120 Cal. 695 [53 P. 357]; 14 Cal.Jur., § 16, p. 359).

On March 31, 1947, during pendency of the appeal, petitioner sought a writ of prohibition to restrain further proceedings in the matter of the guardianship of her estate on the ground that she had not been personally served with citation.

On May 1, 1947, the clerk, acting solely upon his own motion and without any order of court, issued a new citation requiring petitioner to appear on May 15th to show cause why she should not be adjudged incompetent and why a guardian should not be appointed both of her person and of her estate. This is the citation which is under attack in the present proceeding. At the time of its issuance the appeal from the order appointing a guardian of petitioner’s estate was pending, as was the prohibition proceeding instituted in March, 1947. On May 15, 1947, the date the citation was returnable, petitioner appeared in court in person and by counsel and, because of the pendency of the prior prohibition proceeding, objected to any proceedings based on the citation. The court thereupon continued the matter.