Wall v. Anglo California National Bank

California Court of Appeal Nov 24, 1941 No. Civ. No. 11874Published

Before: Sturtevant

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Holding. The court held that an order appointing a guardian cannot be set aside on collateral attack based on an alleged failure to serve a copy of the petition, as the judgment roll does not affirmatively show a lack of service and it is presumed that proper notice was given.

Issues

Whether the failure to serve a copy of a guardianship petition with the citation renders the appointment order void for lack of jurisdiction.
Whether a motion to declare a guardianship order void, made sixteen months later, is subject to the rules of collateral attack.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Said motion is governed by the rules applicable to collateral attack and must therefore be determined upon the judgment roll alone.”

“Under such an attack it will be presumed that, as to notice of the applications for guardianship, other proof than that contained in the judgment roll was made.”

STURTEVANT, J. From an order refusing to grant his motion for an order declaring null and void an earlier order appointing two guardians of his person and a guardian of his estate, Patrick Wall, an alleged incompetent, by and through Emmet Daly, his guardian ad litem, has taken this appeal and has brought up the judgment roll.

On April 25, 1939, Stella G. Gentry filed a petition asking the probate court to make an order appointing two persons as guardians of the person of said incompetent ánd Crocker First National Bank of San Francisco as guardian of the estate of said incompetent person. -The court ordered the petition set for hearing and also ordered a citation to be issued and served. The hearing was so set for the 2nd day of May, 1939. A citation was issued on the 25th day of April, 1939. It recited:

“By order of the above entitled court, you are hereby notified that Stella G. Gentry has made application that Dr. Ernst A. Victors and Helen Forster be appointed guardians of your person, and that Crocker First National Bank of San Francisco be appointed guardian of your estate, and that Tuesday, the 2nd day of May, 1939, at the hour of 10 o’clock A. M. of said day, in the court room of Department-No. 9 of said court, in the City Hall, City and County of San Francisco, State of California, has been set as the time and place for the hearing of said petition. ..." As shown by the affidavit attached thereto, Jack Poole “ . . . served the within citation by showing the said within original to Patrick Wall and delivering a true copy thereof to him on the 25th day of April, 1939, at the City and County of San Francisco." On May 2, 1939, a hearing was had on said petition. On the same day the court made an order. Among [10]others it contains a recital ‘‘ and due proof having been made that personal notice of said application was given by citation in the manner and at the time required by law and the previous order of this court aforesaid. ...” Continuing the court ordered Beatrix Saunders and Dr. Victors appointed as guardians of the person of said incompetent person and The Anglo California National Bank of San Francisco appointed as guardian of his estate,. Letters issued May 3, 1939. Nothing to the contrary appearing, we may assume each duly qualified and commenced to act.

On September 14, 1940, said incompetent filed his notice of motion to have said order dated May 2, 1939, declared mill and void. Said notice recited that his motion would be based “ . . . upon the ground that said Superior Court never acquired jurisdiction over the person of said Patrick Wall for the reason that the citation which was issued by the Clerk of said Superior Court on the 25th day of April, 1939, upon the filing of the petition of Stella G. Gentry praying that Dr. Ernst A. Victors and Helen Forster be appointed guardians of the person of said Patrick Wall, and that The Crocker First National Bank of San Francisco be appointed guardian of the estate of said Patrick Wall, was not served in the manner required by law for the service of citations in this that no copy of the said petition of Stella G. Gentry was served upon said Patrick Wall with a copy of said citation. Said motion will be supported by certain of the records and files of said Court which were before said Court at the time of making said order purporting to appoint said guardians on the 2nd day of May, 1939, that is to say by these certain records and files, towit:

Wall v. Anglo California National Bank

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