In Re the Guardianship of the Persons & Estates of Morehouse

HENSHAW, J.

The facts on this appeal are not in dispute. On January 3, 1916, the appellant, Frank B. More-house, and the respondent, Merle M. Morehouse, his wife, separated. There were two minor children of the marriage. The mother took the two small children from the family home in San Francisco and went to Alameda County, where she still resides. The father remained at the family, home in San Francisco. On June 18, 1916, the father went to Alameda and brought the children back to San Francisco, writing to his wife that he had done so and inviting her to return to the family home. She neither answered nor returned. On August 3, 1916, he filed a petition in the superior court of the city and county of San Francisco for the appointment of himself as guardian of the children.. The only relatives of the children residing in San Francisco at the time were Mrs. Stewart, an aunt, and Frank B. Morehouse, a grandfather. They both requested the appointment of appellant in writing, and both had notice of the application.'

On August 3,1916, an order was made appointing appellant guardian of the persons and estates of the minors. On February 1, 1917, the mother gave notice that she would move to set aside this appointment on February 9, 1917, which last date is more than six months after the order appointing appellant guardian was made and given. The motion was made on February 9, 1917, and was based on the ground of fraud and lack of jurisdiction. The charges of fraud were voluntarily withdrawn and the court found that no fraud

[636]

had been practiced or attempted, but the court made its order vacating the appointment on-the ground that “the same was inadvertently made, in "that the court had no jurisdiction to do so.” As a motion for relief, predicated upon the provisions of section 473 of the Code of Civil Procedure, the motion having been made more than six months after the date of the judgment, the court should have refused to entertain it.

(People

v.

Ah Sam,

41 Cal. 645;

Spencer

v.