Collins v. Superior Court

WASTE, P. J.

The petitioner is here seeking a writ of mandate directing the superior court in and for the county of Monterey to hear and determine an application for guardianship. The respondent, being in doubt as to its jurisdiction in the matter, has declined to proceed.

Until November 1, 1916, petitioner, Henry W. Collins, and Isabel Collins were husband and wife. On that date they were divorced by a decree duly entered in the superior court in and for Marin County, and the custody of Benjamin Collins, the minor son of the parties, was awarded to the mother. That decree is in full force and effect. The boy remained with his mother, who removed to Solano County, until he became fourteen years of age, when he went to live with petitioner, his father, who has for a number of years resided in Monterey County. The petitioner has filed in the superior court of Monterey County

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his application, to be appointed guardian of the person of his son, Benjamin, who in writing nominated his father as his guardian, and requested that he be appointed. The court refused to cause notice of the hearing of the petition to be given, or to proceed in the matter, holding that the superior court of Marin County, in which the parents were divorced, has exclusive jurisdiction to hear and determine any matter relating to the custody and care of the minor.

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The authority of the superior court of Marin County to award the custody of the minor to one of the parties in the divorce action was not exclusive. It was but the exercise of the general power conferred by section 138 of the Civil Code to make a proper order for the custody of the child.

(Ex parte Gordan,

95 Cal. 374, 377, [30 Pac. 561].) That section does not confer jurisdiction upon the court to appoint a guardian for such minor. The superior court of each county, when it appears necessary or convenient, may appoint guardians for persons and estates, or; either of them, of minors who have no guardian legally appointed by will or deed, and, who are inhabitants, or residents of the county. That authority is conferred by section 1747 and following sections of the Code of Civil Procedure. Section 138 of the Civil Code was enacted for the protection of children of persons who may submit themselves and their marital relations to the general jurisdiction of the superior court.