Heisen v. Smith

THE COURT.

This is a suit by the assignee of Margaretta

Z.

Smith against the defendant Smith, her former guardian, and the sureties on his bond, to recover the sum of $466, adjudged to be due her from the guardian on a settlement of his account. The citation on the guardian to account was served by publication, as in the ease of

Trumpler

v.

Cotton,

109 Cal. 250, 255, and it is claimed was insufficient to give the court jurisdiction. The jurisdiction of the court is attacked on several grounds, which will be considered

seriatim.

1. The order of publication, made. August 18, 1896, after reciting that a citation previously issued had not been, and could not be, personally served, and that time did not remain to make publication before return day, directs “that the citation [theretofore] issued be vacated and set aside,” and that a new citation issue “returnable November 27, 1896”; and that “the service of said citation be made ... by publication” as directed. . . . The citation issued under this order—which is in the same terms as the original except as to the return day—is dated August 19th, the following day, which is the defect complained of. We can see no objection to this mode of procedure, nor do we think the validity of the proceedings can be affected by the delay of the clerk in issuing the citation, provided it be issued before the publication be commenced. The case is different from that of a summons, where, as held in

People

v.

Huber,

20 Cal. 82, the issue of the summons is essential to give the court jurisdiction. For under the law, as it then stood, until the summons was issued

[218]

there was no action pending. (Practice Act, sec. 22.) There are also other differences between the cases. The issue of a summons does not depend upon the order of the court, whose “only power is to order the summons, which has already issued, to be served in a special manner.”- But in probate or guardianship proceedings the citation itself issues only on the order of the court. Also in this case a citation had: already been issued, and the new citation was but the same in terms as the old, except as to the change of the return day. It is therefore in substance simply an amendment of the original citation, and is to be so regarded.