Coburn v. Hynes

THE COURT.

Petitioner was duly declared by the superior court to be an incompetent person, and M. J. Hynes was appointed and qualified as guardian of his person and estate. Immediately following the order of appointment in the guardianship proceeding Loren Coburn, petitioner herein, gave notice of an appeal and within the time required by law filed in proper form his undertaking on appeal in the sum of three hundred dollars. He now petitions for a writ of

supersedeas,

alleging that the said M. J. Hynes threatens to take possession of his property and to act as his guardian in spite of the pending appeal. This is admitted by the return. The sole question presented, therefore, is whether or not the guardian should be prevented by means of such a writ from assuming the functions of his office pending the appeal from the order appointing him.

Respondent, M. J. Hynes, concedes that such cases as

In re Woods,

94 Cal. 566, [29 Pac. 1108], and

Matter of Moss,

120 Cal. 695, [53 Pac. 357], seem to sustain petitioner’s position that the filing of the undertaking on appeal provided by section 941 of the Code of Civil Procedure suspends the guardian’s power pending appeal,, but he asks us to overrule these

[687]

cases upon the grounds: 1. That section 966 of the Code of Civil Procedure recognizes the right of a guardian to act during an appeal from the order appointing him; 2. That this ease comes under the rule declared in

Dulin

v.

Pacific Wood & Coal Co.,

98 Cal. 305, [33 Pac. 123], and

Matter of the Real Estate Associates,

58 Cal. 356; and 3. That it is contrary to sound public policy to suspend the functions of a guardian until the hearing of the appeal from the order appointing him.