Murphy v. Superior Court of Santa Clara County
Before: Works
Synopsis
Writ of Prohibition — Remedy by Appeal. — The writ of prohibition will not lie where it appears that the inferior court has jurisdiction of the subject-matter, and there is a remedy by appeal.
Id. — Collateral Attack upon Jurisdiction. — When an inferior court has power to determine a jurisdictional fact, its determination cannot be collaterally attacked upon an application for a writ of prohibition.
Appointment of Guardian — Jurisdiction of Superior Court.—The superior court has general jurisdiction of the matter of the appointment of guardians, and, as an incident to its jurisdiction, it has the power to hear and determine whether a testamentary guardian has been legally appointed or not; but if the fact of the appointment of a guardian by
I will or deed were established, the superior court has no jurisdiction to appoint a guardian, and its order appointing a guardian would he a nullity.
Id. — Guardian by Deed — Testamentary Guardian — Bond.—A guardian appointed by deed must be considered as a testamentary guardian, since the appointment does not take effect until the death of the parent; and in order to become a guardian by deed, it is not enough that he be named in the deed as guardian, but he must also qualify by giving bond, as required of testamentary guardians.
Id. — Appointment by Court without Bonds. — A guardian of the property of minor children, appointed by the court, does not become a guardian unless he gives the bond required by section 1754 of the Code of Civil Procedure; and the court has no power in its order of appointment to dispense with bonds.
Id. —Estoppel to Deny Guardianship.—There is no estoppel to deny the fact of guardianship by reason of neglect to give the bond required by law, if no money or property appears to have been received by virtue of the appointment.
Id. —Appealable Order — Prohibition.-—An order requiring one who has been appointed guardian of the estate of a minor, hut who has never given bonds, to pay for the maintenance of the minor, when it is not shown that he has received any property of the minor by virtue of his appointment, is erroneous; but the order is one from which an appeal may be taken, under section 963 of the Code of Civil Procedure; therefore a writ of prohibition will not lie to prevent the court from enforcing the order.
Works, J. This is an application in this court for a writ of prohibition. Petitioner was, by a deed from his brother, John Murphy, made a trustee of certain property, belonging to the latter, for the benefit of his, the brother’s, children. The deed also contained this clause: “I hereby also order, decree, and appoint my said brother, Bernard, as the lawful guardian for the purpose of support, tuition, and religious training of my two sons, above named. I also enjoin on him the duty of having them educated at the Santa Clara College, situate in the county of Santa Clara, and state aforesaid, and that the ages I wish them to enter shall be not more than twelve years respectively. I also desire my good and kind sister-in-law, Isabel Hanna, to exercise a control, in connection with my brother, Bernard, over my two sons, William Patrick and Henry Bernard.”
The petitioner filed no bond as such guardian, but subsequently applied to the superior court of Santa Clara County for letters of guardianship, for the reason, as alleged in his petition, that the insurance company refused to pay an amount due them on a policy of insurance on the life of their father, who had since died, without the appointment of a guardian by the proper court. On the filing of the petition for appointment of such guardian, the aunt, Isabel Hanna, mentioned in the deed, filed a [595]counter-petition, alleging that the children had been and still were in her custody, and under her care, and asking that she be appointed their guardian alone or conjointly with the petitioner herein. The respondent heard the petitions, and made and entered an order that “Bernard Murphy maybe and he is hereby appointed sole guardian of the estates of said minors, and joint guardian with Isabel Ilanna of the persons of said minors, and that letters of guardianship be issued to him accordingly, without bonds, upon taking and subscribing an oath as required by law, the custody of the persons of the said minors to remain with said Isabel Ilanna until the further order of the court.” No bond was given under this appointment. It will be seen that while the order provides that the petitioner and the said Isabel Ilanna shall be the joint guardians of these children, there is no order appointing her such guardian, and it is alleged in the petition before us that she never qualified as such guardian, but that the children had remained in her custody until they arrived at the ages of twelve, respectively, when it is alleged the petitioner requested her to allow them to be placed at Santa Clara College, as provided in the deed of their father to him, but she refused to do so, and he, from the time of such refusal, or soon after, discontinued an allowance he had been making her for their maintenance. She thereupon applied to the respondent for an order requiring the petitioner to pay her the sum of fifty dollars per month for the maintenance of the children. The respondent assumed jurisdiction of the latter petition, made an order requiring the petitioner herein to pay said allowance, and this proceeding is to prohibit the enforcement of the order.
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