83 P. 154 | Cal. | 1905
Lead Opinion
This is a motion to dismiss the appeal. The appellant, plaintiff in the court below, brought an action to quiet title as to certain real estate in the city and county of San Francisco, and among the defendants in said action was Robert John Levison, a minor. On the application of the plaintiff in the court below to have a guardian ad litem appointed for said minor defendant, the court appointed George B. Merrill, an attorney in said city and county, as such guardian ad litem. After the hearing of the cause in the court below, before rendition of judgment, said Merrill, as guardian ad litem, applied to the court, upon notice to the plaintiff, to fix his compensation as such guardian adlitem of Robert J. Levison, minor. In accordance with said notice, the court, after hearing, the plaintiff being present, ordered that the plaintiff pay to said George B. Merrill the sum of two hundred dollars for his services as guardian ad litem. Thereafter the court entered judgment in favor of the plaintiff, quieting his title to the premises in question, and added to said judgment as part thereof the following, to wit: "And a guardianad litem for said defendant Robert J. Levison, a minor, having been appointed in this action upon the application of said plaintiff, it is ordered that said plaintiff pay to said George B. Merrill, Esq., guardian ad litem as aforesaid, the sum of $200 for his services as guardian ad litem." The plaintiff, as stated in his notice, "appeals to the supreme court of the state of California from the part hereafter set forth of the judgment and decree heretofore duly given and made by said court in the above-entitled action, dated and filed May 15, 1905. . . . Said part of the judgment and decree so appealed from is in the following words and figures, to wit: [Then reciting the portion of the judgment already referred to, ordering the payment by the plaintiff to the guardian ad litem of the sum of $200 for his services as such guardian.]"
The respondent Merrill moves the court to dismiss the appeal on the ground that no appeal is provided by law from the part of the judgment as mentioned in the notice of appeal. *366
The portion of the judgment ordering the payment to the guardianad litem, appointed at the request of the plaintiff, is not, properly speaking, a part of the judgment on the merits of the case. This is practically admitted on the part of the appellant. The compensation of the guardian ad litem, is in the nature of expenses or costs, and an incident to the action, and forms no part of the cause of action or defense thereto. The appellant seems to rely upon Harron v. Harron,
The appeal must therefore be dismissed, and it is so ordered.
McFarland, J., and Lorigan, J., concurred.
Concurrence Opinion
I concur in the judgment dismissing the appeal. Properly speaking, the order making the allowance against the plaintiff for the services of the guardian ad litem of the defendant Robert John Levison, appointed as such upon the motion of the plaintiff, is not a part of the judgment in favor of the plaintiff and against the defendants. Neither the other defendants nor the minor defendant were parties to the proceeding upon which said allowance was made. It was not allowed as part of the costs in the cause taxable in favor of the plaintiff, nor as costs in any sense, and the amount allowed was not in fact taxed as costs either against the plaintiff or the defendants, nor included in any judgment in favor of the plaintiff against the defendants. The case simply amounts to this: That the plaintiff procured Mr. Merrill to act in his behalf by taking the appointment of guardian ad litem for a minor defendant in the action. For the services thus performed at plaintiff's request the plaintiff would perhaps be responsible to the extent of their reasonable value. Whether or not the court has jurisdiction in the action in which such services are rendered to make an order fixing the amount of such services rendered by the guardian ad litem, and to make an order that the party who procured the appointment should pay the amount fixed to the person who served as guardian adlitem, is a question which need not be here decided. There is an intimation to the effect that the court may have power to make such an allowance against the estate of the ward in Cole v.Superior Court,
Beatty, C.J., Angellotti, J., and Henshaw, J., concurred in the opinion of Justice Shaw.