Opinion
Appeal from the Twelfth District.
COUNSEL:
E. L. Goold, for Appellants.
Hoge & Wilson and Whitcomb, Pringle & Felton, for Respondents.
JUDGES: Field, C. J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
FIELD, Judge
This is an action commenced by the plaintiffs as devisees of Adolph Gronfier, deceased, against the surviving partners of the late firm of Gronfier, Jeune & Co., to obtain a settlement of the affairs of the copartnership, a sale of its effects, and a distribution of the proceeds. The other defendants, besides the surviving partners, were either heirs at law of the deceased, or interested in his estate. They all appeared in the action--the defendant Adolph Leon Gronfier by his general guardian, Eugene Lies--and by consent the action was referred to a referee to try the issues and report a judgment. The referee finding it difficult to adjust the shares and proportions of the different parties until the assets were converted into cash, reported to the Court all the facts of the case, excepting the state of the accounts, and recommended an interlocutory decree for the sale of the assets, and that further proceedings be deferred until the amount of the cash assets produced by the sale were ascertained. By consent of the parties, such decree was entered, and a commissioner appointed to conduct the sale upon specified terms. At the sale which followed, the petitioner Landry became the purchaser of certain real estate situated within the city of San Francisco. He now refuses to comply with his purchase, and files his petition to be relieved from the same, alleging that by reason of certain irregularities in the proceedings in the action he will not obtain a good title to the premises. The irregularities alleged arise from the appointment of Eugene Lies as general guardian of the infant Adolph Leon Gronfier without, as claimed, sufficient notice to parties interested in the estate; and from the fact that Lies, if properly appointed such general guardian, was never appointed to appear as guardian ad litem for the infant in the action. The Court below held the sale of the premises legal and binding, and denied the prayer of the petitioner; and hence the present appeal.
1. The petition to the Probate Judge, upon which Lies was appointed general guardian, represented that the infant and his parents were at the time citizens and residents of France; and the order appointing Lies was made after notice of the time and place of hearing the petition was given to all persons interested, by publication, pursuant to the direction of the Judge, in a daily newspaper of the city, for the period of five days. The objection taken to the order, and the only objection, is that the notice was insufficient to enable the infant and his parents to learn of the proceedings, and to appear and oppose the same. We do not think the objection tenable. The statute authorizes the Probate Judge of each county, when it shall appear to him necessary or convenient, to appoint guardians of minors, who have no guardian appointed by will, and who are residents of the same county, or who reside out of the State having any estate within the county. (Act to Provide for the Appointment and to Prescribe the Duties of Guardians, of April 19th, 1850, sec. 1.) It also provides that if the minor be under the age of fourteen years, the Probate Judge may nominate and appoint the guardian, but if above the age of fourteen, he may nominate his own guardian, who, if approved by the Judge, shall be appointed accordingly, (Same Act, sec. 2) but that if such nomination be not approved, or if the minor reside out of the State, or if, after being duly cited, he shall neglect for ten days to make a suitable nomination, the Judge may nominate and appoint the guardian in the same manner as if the minor were under the age of fourteen (Same Act, sec. 3); and that when any minor " shall reside without this State, and shall have any estate therein, any friend of such person, or any one interested in his estate in expectancy, or otherwise, may apply to the Probate Judge of any county in which there may be any estate of such absent person, and after notice given to all persons interested, in such manner as the Judge shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person." (Same Act, sec. 43.) This last provision places the manner in which the notice shall be given--and the manner includes, also, the period for which it shall be given--subject entirely to the direction of the Probate Judge. Instances may frequently arise where immediate action may be necessary for the protection of the interests of the minor, and where the friendly relation of the applicant or the identity of his interest with that of the minor in the estate, may be so clearly established or be so well known to the Probate Judge as to justify notice of a very limited period. It is a matter for the exclusive judgment of the Probate Judge, subject, perhaps, to review on appeal to this Court from the order of appointment. It is true, injury to the interests of the minor may sometimes follow in such cases from the appointment of an unsuitable person, but he has his remedy upon the bond of the guardian for any improper conduct in the management of his estate. Third persons cannot question the validity of the order upon any allegation that insufficient notice was given of the hearing of the application for the appointment under the statute.
2. As Lies was general guardian, there was no occasion for his special appointment as guardian ad litem in the action. As general guardian he was authorized--indeed, it was his duty--to appear for his ward. The statute declares that the guardian " shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose as guardian or next friend." (Same Act cited above, sec. 16.) The provisions of the Civil Practice Act relating to the appointment of guardians ad litem where infants are parties, (secs. 9 and 10) only apply where there is no general guardian, or where he does not act. Cases frequently arise where the interests of the minor are best subserved by the special appointment of a guardian ad litem, even though he may have a general guardian. In such cases the Court would make a special appointment; and the act concerning guardians, to which we have referred, expressly reserves the power of the Court in this respect. (Sec. 11.) But where the Court does not specially appoint for the particular action, the general guardian may appear, and it is his duty to appear for his ward.
Order affirmed.