In Re Pozzo

California Court of Appeal Feb 11, 1930 No. Docket No. 7253.Published

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Holding. The court held that the trial court erred in vacating an order appointing a guardian based solely on an inspection of the judgment-roll, as the presumption of regularity in the original judgment was not overcome by the evidence presented.

Issues

Whether the trial court had jurisdiction to vacate an order appointing a guardian based on an alleged lack of legal notice to the wards.
Whether the evidence presented was sufficient to support the finding that the original order appointing a guardian was void for lack of notice.

Disposition. reversed

Quotations verified verbatim against the opinion

“Legal notice to them was jurisdictional. They were entitled to at least five days’ notice of the time and place of hearing of the petition for letters of guardianship of their persons and estates.”

“There is a presumption in favor of the regularity of the judgment.”

“We must, therefore, hold that the evidence given upon the motion to vacate the order appointing guardian was insufficient to support the court’s decision that the order appointing guardian was void.”

THE COURT.

The following opinion, prepared by Mr. Justice Koford prior to his death, is hereby adopted as the opinion of the court:

After proceedings to that end had in the Superior Court' of the county of Santa Clara, Frank Pozzo was appointed guardian of the persons and estates of Francis Pozzo and Constance Pozzo, adult incompetent persons. The order was made on the 17th of August, 1928. Thereafter on the 18th of September, 1928, Carmen Pozzo, mother of said adult incompetent persons, served and filed a notice of motion, accompanied by a petition and affidavit to set aside and vacate the order appointing guardian of August 17, 1928. Thereafter on the 22d of January, 1929, a new notice of motion was served and filed for the same order specifying that the motion would be made on January 29, 1929. On the day last named, after hearing the motion, the court granted the same, setting aside and vacating the said order appointing guardian. This is an appeal by Frank Pozzo from the said order last named.

The grounds of the motion and the grounds upon which the said order are defended by the respondent are that the court making the order of August 17, 1928, had no jurisdiction either of subject matter or of persons for several reasons. With respect to most of these grounds, the original order appointing guardian constituted a decision by the court that the facts necessary to confer jurisdiction were present. Such determination, in the absence of appeal, in this proceeding would be binding if the incompetent persons had legal notice of the proceedings. The erroneous determination of these questions by the court making the original order would not show a lack of jurisdiction.

[13]

The main ground upon which the order appealed from is defended is that the incompetent persons never had legal notice of the time and place of the hearing of the petition for the appointment of guardian. With respect to this jurisdictional fact a finding of the court cannot bind the incompetent persons if in fact they had no notice of the hearing. Legal notice to them was jurisdictional. They were entitled to at least five days’ notice of the time and place of hearing of the petition for letters of guardianship of their persons and estates. (Code Civ. Proc., see. 1763.) This notice is jurisdictional and if not given, the order appointing guardian is void.

In Re Pozzo

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THE COURT.

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