Guardianship of Vierra

PEEK, J.

This is an appeal from an order of the Superior Court of Mendocino County appointing Patrick G. Murphy, a maternal uncle, as guardian of the person of Gerald Vierra, a minor of the age of 8 years. The appellant is the father of the boy.

The petition alleges that following the divorce of the child’s parents his custody remained with his mother who is .now confined to the Mendocino State Hospital as an insane person.

[871]

It is further alleged that subsequent to her confinement, Joseph R Murphy, the boy’s maternal grandfather was appointed guardian (although not shown by the petition the evidence shows said appointment to have been made by the Superior Court of Shasta County); that said guardian has now resigned; that said minor, although in need of attention and care, has no guardian legally appointed by will or otherwise to so act; and that the minor is presently under the care of and is residing at the Albertinium Home in Ukiah, Mendocino County. Appellant in his objections to the petition does not deny the appointment of the grandfather or his resignation or that the child now has no guardian. But he affirmatively alleges the residence of the boy was in Santa Clara County; that letters of guardianship were issued to him in Santa Clara County on June 7, 1951; that he is a fit and proper person to be appointed guardian and prays that the petitioner’s request for letters be denied and that he be appointed guardian of his minor son.

The hearing on the petition was set for June 1, 1951, upon notice to all parties in interest, among whom were the grandfather, the petitioner, and the appellant. At the request of counsel for appellant the matter was continued for one week. While the Mendocino County proceeding was so held in abeyance a petition for letters of guardianship was filed in Santa Clara County on June 6, 1951, on behalf of the father. According to counsel for appellant, the only notice which he gave of the Santa Clara County hearing was a letter addressed to the mother of the child who, as noted, was then and still is an insane person confined in the Mendocino State Hospital. ■ On the following day, June 7, 1951, the Santa Clara County Superior Court granted letters of guardianship to appellant and he immediately took his .son from the home in Ukiah to his residence in Santa Clara County. On August 17, 1951, the appellant filed his objections to respondent’s petition and on August 30, 1951, following a hearing thereon, the Superior Court of Mendocino County granted letters of guardianship to Patrick G. Murphy, the respondent, and the present appeal followed.