74 Cal. 421 | Cal. | 1887
This appeal is from an order of the superior court of Alameda County, revoking the appointment of E. H. Clarke as guardian of said minor.
The record shows that on March 6,1880, the superior court of the city and county of San Francisco duly appointed one B. W. Owens guardian of the person and estate of said minor, and said Owens remained such guardian until February, 1883, when he was removed therefrom by an order of said court. But he continued to exercise the functions of guardian of said minor until October, 1884, when he, said Owens, died. Prior to his death, to wit, on the 1st of April, 1883, said Owens removed from the city and county of San Francisco to the town of Alameda, in the county of Alameda, where he fixed and established his residence, and continued to reside until he died. Said minor went with Owens from San Francisco to Alameda, and resided in the family of said Owens, at Alameda, so long as said Owens lived. After the death of Owens, said minor lived in the family of appellant, in the house occupied by Owens before and at the time of his death. Immediately after the death of Owens, appellant applied for and obtained from the
1. That said Clarke is not a relation of said minor, and is an unsuitable person to be appointed as such guardian, in that said Clarke has not the personal integrity and moral character to fit him for such guardian.
2. That ever since the death of the father of said minor, and at the time of the .appointment of said Clarke, said minor was under the jurisdiction, care, and control of the superior court of the city and county of San Francisco.
3. That- the petitioner had applied to the superior court of the city and county of San Francisco to be appointed guardian of said minor.
To that petition Clarke filed an answer, in which, among other things, he denied the allegation of his want of personal integrity and moral character to qúalify him for the guardianship of said minor.
The petitioner offered evidence tending to show that Clarke was not a suitable person for such guardianship, and rested. Thereupon Clarke introduced evidence showing that the minor was being carefully and properly cared for, educated, and reared, and tending to show that Clarke was a suitable person to be guardian of said minor, and rested. The petitioner then called witnesses in rebuttal, and was proceeding to examine them when the judge announced that he would hold and decide that the superior court of the city and county of San Francisco, having once acquired jurisdiction of the matter of the guardianship of the person of said minor, never lost it, and that the superior court of Alameda County never acquired jurisdiction of the matter, and made an order revoking the letters before issued to said Clarke, on the
Appellant insists that it was clearly within the jurisdiction of the court to grant said letters, and that the order revoking them is erroneous.
The superior court of the county of which the minor was an inhabitant or resident had jurisdiction to appoint a guardian. (Code Civ. Proc., sec. 1747.) It appears hy the record that said minor had been for more than three years an inhabitant of Alameda County, and had not during that period had any other home, or been absent or away from said county. That, in our opinion, constituted him an inhabitant or resident of Alameda County, within the meaning of the provision of the Code above cited. We think the order cannot be upheld upon that ground.
But while that is the only ground upon which the court based its order, it is not the only ground upon which the removal of Clarke was prayed. In addition to that of the invalidity of his appointment, it is alleged in the petition for his removal that he is an unsuitable person for the guardianship of said minor, which was put in issue by the denial of Clarke, and upon that issue evidence was introduced on both sides, none of which is incorporated in the bill of exceptions. We infer, however, that it was conflicting, and if it appeared that the court had found that it preponderated on either side, we might not have disturbed the finding. But it plainly appears that the evidence upon that issue was not considered by the court, and we have no means of ascertaining on which side it preponderated, or on which side the court thought it preponderated.
The rule which has been applied to orders granting new trials, that if for any cause the verdict and judgment ought to have been set aside and a new trial granted, the order should be allowed to stand whether the reason assigned for it was right or wrong, is not
Order reversed.
McFarland, J., and Thornton, J., concurred.