CARTER, J. I dissent.
When the trial court based its dismissal of plaintiffs’ action on the provisions of section 583 of the Code of Civil Procedure, it was guilty of a gross abuse of discretion which should not in fairness and justice be upheld by this court. Section 583 provides, in part, that “The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial.” The wording of this section makes clear that it was meant to apply only to those actions which a plaintiff could and should have prosecuted without delay.
Where there is good reason for an extended delay, where a party is unable for good reason to proceed to trial or where it would be futile or impracticable to prosecute the action promptly, an exception to the dismissal provisions of section 583 is recognized. (Christin v. Superior Court, 9 Cal.2d 526 [71 P.2d 205, 112 A.L.R. 1153] ; Judson v. Superior Court, 21 Cal .2d 11 [129 P.2d 361] ; Bank of America v. Superior Court, 84 Cal.App.2d 34 [189 P.2d 799].) It is equally well recognized in California that the time, during which for all practical purposes going to trial would be impossible due to [854]impracticability or otherwise, is to be excluded in determining whether an action has been brought to trial within the time limit provisions of section 583 of the Code of Civil Procedure. (Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61 [168 P.2d 665] ; Westphal v. Westphal, 61 Cal.App.2d 544 [143 P.2d 405].)
In the ease at bar the defenses, which were set up by defendants in their answer to plaintiffs’ complaint, made it highly impracticable, if not impossible, to proceed to trial until a final determination was had in two other proceedings. As one affirmative defense, defendants alleged that plaintiff Tomoya Kawakita could not maintain the action because he was an enemy alien and since the causes of action were joint, all plaintiffs were therefore barred. In another separate defense defendants alleged that certain matters had already been conclusively determined in a prior probate proceeding. The final answers to both these defenses were, as I shall point out, dependent upon the final outcome of two other proceedings. In view of this, it would have been futile for plaintiffs to have attempted to proceed with the trial until a final determination was had in these other two matters.
First, let us consider the effect of the defense that plaintiff Tomoya was an enemy alien. As a separate and affirmative defense defendants alleged “That plaintiff Tomoya Kawakita was not at the commencement of this action, and is not now a citizen of the United States, but was and is an alien and a citizen of Japan; that at the commencement of this action the government of Japan was and still is at war with and is an enemy of the United States; that by reason of the foregoing and the further fact that the first cause of action of said Amended Complaint is joint and not severable, the cause of action is barred. ’ ’ (A similar defense was set out against the second cause of action.) Such a defense would no doubt have been effective if Tomoya were actually an alien and a citizen of Japan since at this time a state of war still existed between the United States and Japan.
It is well established that the rights of enemy aliens to prosecute actions are, in most respects, suspended during time of war. In considering section 7 (b) of the Trading with the Enemy Act, which provides that “. . . nothing in this act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the [855]war. ...” the United States Supreme Court has stated that “This provision was inserted in the act in the light of the principle recognized by Congress and by this court that war suspends the right of enemy plaintiffs to prosecute actions in our courts.” (Ex parte Colonna, 314 U.S. 510 [62 S.Ct. 373, 86 L.Ed. 379] ; see, also, Taylor v. Albion Lbr. Co., 176 Cal. 347 [168 P. 348, L.R.A. 1918B 185] ; Borovitz v. American Hard Rubber Co., 287 P. 368; H. P. Drewry, S.A.R.L. v. Onassis, 266 App.Div. 292 [42 N.Y.S.2d 74].)
Looking to the facts of the case at bar we find that prior to the filing of defendants’ answer, on November 8, 1949, plaintiff Tomoya had, on September 2, 1948, been convicted of treason and found to have been a citizen of the United States. An appeal was thereafter taken and one of the principal issues was whether or not Tomoya was an enemy alien or a citizen of the United States. Due to the appeals, a final determination of Tomoya’s citizenship was not had until June 2, 1952. At that time the United States Supreme Court, in a close four to three decision, held that Tomoya was, and at all times had been, a citizen of this country. (Kawakita v. United States, 343 U.S. 717 [72 S.Ct. 950, 96 L.Ed. 1249].) It thus becomes apparent that the question as to Tomoya’s citizenship, which defendants sought to raise in their answer, was iu constant litigation in the federal courts from a time prior to defendants’ answer until June of 1952, yet the instant case was dismissed on February 29, 1952. It would have been highly impracticable and futile for plaintiff Tomoya to have attempted to litigate his alleged citizenship in the California courts when the question was then currently a highly contested issue in the federal courts.
The second defense which necessitated a delay in bringing the instant action to trial, was the allegation by defendants that plaintiffs had no cause of action for fraud or conspiracy to defraud due to the findings of the prior probate order. Such a defense pointed out that the probate order of May 22. 1942, provided that the property involved was not worth more than $6,000; that the property was sold for $6,000; and that Tomoya and Hiroko had no interest in the property since said property was encumbered for more than $24,000. This order which defendants rely on was the order permitting and approving the sale of the real property of the guardianship.
In their effort to avoid this defense, based on the prior order, plaintiffs moved to have the probate court set aside [856]and vacate the letters of guardianship and all subsequent orders. Such was the most reasonable and expedient method of settling the validity of the guardianship once and for all. As stated in In re Dahnke, 64 Cal.App. 555, 560 [222 P. 381], “It is well settled that a judgment or 'order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. (People v. Greene, 74 Cal. 400 [16 P. 197, 5 Am.St.Rep. 448]; People v. Temple, 103 Cal. [447] 453 [37 P. 414].)”
In the instant case proper notice as required by statute (Prob. Code, § 1441) had not been given to the parents of the alleged minors involved. Such a defect was apparent from the face of the record of the guardianship proceedings and an appointment made without the required notice is a nullity. (In re Dahnke, supra, 64 Cal.App. 555; Guardianship of Kerns, 74 Cal.App.2d 862 [169 P.2d 975]; Guardianship of Van Loan, 142 Cal. 423 [76 P. 37].) It is well established that the notice required by Probate Court, section 1441, is a condition precedent to the valid exercise of the power to appoint a guardian and is jurisdictional. (In re Dahnke, supra, 64 Cal.App. 555.) In view of this, the most effective and practical method of attacking such jurisdiction was by a motion in the probate court to revoke the letters of guardianship which were not properly granted.
It could be argued that the guardianship proceedings were subject to collateral attack in the instant proceeding and that it was unnecessary to institute the motion to revoke in the probate court; however, such an argument loses sight of the practicality and expediency of the procedure followed by plaintiffs. If plaintiffs had attempted a collateral attack of the probate order they would have encountered almost insurmountable difficulties; Such difficulties were adequately pointed out in Asher v. Yorba, 125 Cal. 513, 515 [58 P. 137] when this court stated that “It must be borne in mind that this appellant is here making a collateral attack upon a judgment decreeing a sale of the minor’s land, and, consequently, all the rules of law hedging about the validity of such decrees are to be invoked against her. The order of sale in this case is presumed to have been a valid one. It behooves her to show to the contrary. The burden is upon her to show a void sale. The absence of evidence in this record showing the jurisdictional facts may be taken as evidence against her. If the [857]posting of these notices was not performed according to the requirements of the statute, it was for her to show that fact. If the evidence does not show how it was done, and when it was done, it will be presumed that it was done in the proper manner and at the proper time. Of course, we are not even intimating that appellant would be allowed to go outside of the record of the proceedings and by extrinsic evidence attack the validity of the guardian’s sale.” Thus it is apparent that a collateral attack on the probate proceedings would have been a very difficult if not an impossible task.
On the other hand, as stated in In re Dahnke, supra, 64 Cal.App. 555, 561, “A motion to vacate a judgment or an order is a direct and not a collateral attack; and on such motion, if it be made in time, any facts going to show the invalidity of the judgment or order may be presented—facts dehors the' record as well as facts appearing on the face of the judgment-roll or record. (Norton v. Atchison etc. R. R. Co., supra [97 Cal. 388 (30 P. 585, 32 P. 452, 33 Am.St.Rep. 198)] ; Estate of Eikerenkotter, supra [126 Cal. 54 (58 P. 370)].)” The court in the Dahnke case also noted that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity may be set aside at any time by the court which rendered the order. It therefore becomes apparent that, as a practical matter, the best and most effective method of attacking the guardianship was in the probate court as plaintiffs sought to do. Until the validity of the guardianship orders were finally determined it would have been practically futile, if not impossible, to have proceeded to trial in the instant action. (See Westphal v. Westphal, supra, 61 Cal.App.2d 544; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61.)
In view of the fáct that it would have been impossible and futile, from a practical standpoint, to proceed to trial until the foregoing issues, pleaded by defendants in their defense, were finally determined, the case should be removed from the effect of Code of Civil Procedure, section 583. It is well established that the time during which it is impractical or impossible to bring a case to trial should be excluded in determining whether a case has been brought to trial within the time limit provisions of section 583. (Christin v. Superior Court, supra, 9 Cal.2d 526; Westphal v. Westphal, supra, 61 Cal.App.2d 544; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61.) When the trial court failed to recognize these well recognized exceptions to section 583 of the Code of Civil Pro[858]cednre, and dismissed plaintiffs’ action, it committed a gross abuse of discretion which should not be sanctioned by this court.
For these reasons I would reverse the judgment of dismissal.
Appellants’ petition for a rehearing was denied June 23, 1954. Carter, J., was of the opinion that the petition should be granted.