Guardianship of Lyle

77 Cal.App.2d 153 (1946) Guardianship of the Person and Estate of ANNIE GALLOWAY LYLE, an Incompetent Person. ANNIE GALLOWAY LYLE, Appellant,

v.

THE ANGLO-CALIFORNIA NATIONAL BANK OF SAN FRANCISCO, as Guardian, etc., et al., Respondents.

Civ. No. 13131. California Court of Appeals. First Dist., Div. One.

Dec. 5, 1946. Joseph A. Brown and Reed M. Clarke for Appellant.

Carl E. Day for Respondents.

WARD, J.

The notice of appeal herein sets forth "that the above-named alleged Incompetent, Annie Galloway Lyle, does hereby appeal from the Orders and each of them, made and entered by the above-entitled court, on the 11th day of December, 1945, appointing guardians of her Person and Estate and directing Issuance of Letters of Guardianship in said matter." The notice refers to the appointment of Charlotte Cunningham as guardian of the person of "Annie Galloway Lyle, an incompetent person," and the Anglo-California National Bank of San Francisco as the guardian of the incompetent's estate. Appellant refers to Annie Galloway Lyle as Dr. Lyle. In the interest of brevity appellant's designation will be adopted.

On November 7, 1945, there was filed by H. L. McAllister, as a friend, a verified petition seeking the appointment of a guardian over the person and estate of Dr. Lyle. Also, on the same date, a citation was issued directing Dr. Lyle to appear on November 16, 1945, to show cause why H. L. McAllister should not be appointed guardian of the person and estate of the alleged incompetent. On November 16, 1945, the date set for the hearing of the McAllister petition, William D. Galloway, a resident of the State of Pennsylvania, and a cousin of Dr. Lyle, filed an unverified petition praying that the Anglo-California National Bank of San Francisco be appointed guardian of the estate, and that a suitable person be appointed guardian of the person of Dr. Lyle. The Galloway petition was not treated as a separate proceeding but was filed with the McAllister petition and given the same court number, namely, Probate No. 101214.

[1] On November 30, the attorney for petitioner McAllister, filed with the county clerk an authorization, dated November 26, 1945, to dismiss the McAllister petition. The general rule, as stated in Code of Civil Procedure, section 581, is that a plaintiff has a right to dismiss an action before the submission of the case unless affirmative relief is prayed for