In Re the Estate & Guardianship of Eikerenkotter

GAROUTTE, J.

—This appeal is prosecuted from an order made

by

the superior court refusing to set aside the letters of guardianship theretofore issued to Julius Eikerenkotter over

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the person of Catherine H. Eikerenkotter, a minor. The application for the order to set aside was made more than six months after the order of appointment, and, as appears by the application, was based largely upon the fact that petitioner, loan Smith, had the custody of the minor at, the time the order of appointment was made, and no notice of the hearing was given her. The trial court refused to go into the merits of her application as to Eiherenkotter’s incompetency to act as guardian and her competency to so act, but held that the application to set aside the order of his appointment, having been made more than six months after the order was made, should be denied for that reason.

The judgment of the trial court is correct, if the order appointing Eikerenkotter guardian be not void upon its face. In other words, if the record discloses that the court had no jurisdiction to make, the order of appointment, then- the order is void upon its face and can be attacked at any time.

(Jacks v. Baldez,

97 Cal. 91;

Norton v. Atchison R. R. Co.,

97 Cal. 388; 33 Am. St. Rep. 198;

People v. Temple,

103 Cal. 447.) This is fully apparent, for there can be no statute of limitations which will run against an order or judgment void upon its face. In

People v. Temple, supra,

and also in later cases, it is held that all applications to set aside orders or judgment^ not void upon their face must be made within six months after the entry of such order or judgment, and that, too, whether or not the application is made under section 473 of the Code of Civil Procedure.

It follows from the foregoing that this application came too late, unless the order is void upon its face. Among other matters, section 1747 of the Code of Civil Procedure declares: “Before making such appointment the court must cause such notice as such court deems reasonable to be given to any person having the care of such minor.” By this provision of the statute it is made mandatory that the person having the custody of the minor should have notice of the hearing. Such notice is absolutely necessary to give the court jurisdiction of the proceeding and power to make the order of appointment. But in this case, from an inspection of the record— which consists of the petition for the appointment, the con