TheJudge does not acquire jurisdiction of the persons and estate of the insane person by the filing of the petition, but the jurisdiction comes from the service of the notice upon the supposed insane person, of the time and place of hearing such petition, or the case made by it. The statute provides that two classes of persons may present this petition to the Judge. First, a relative; secondly, a friend.
The petition presented by Enos was an independent proceeding on his part; that presented by appellant, a separate and independent proceeding from that instituted by Enos. There being only two classes of persons that are entitled to present a petition, he would be entitled to show that the person presenting his petition was not a relative, and was not a friend, but a stranger who desired to gain possession of his property for other than commendable motives, and under the allegations of each petition to show that he was not insane when the petition was presented, nor at the hearing. The appointment of guardian can be attacked collaterally, if made without jurisdiction. (Whitwell v. Barbier et al. , 7 Cal. 54; McMinn v. Whelan et al. , 27 Cal. 300, 314; Hahn v. Kelly , 34 Cal. 391.)
The case of a guardian acting without legal authority, stands before the law and upon principle as an executor de son tort. The latter is held as a trustee and legal executor for all purposes of accountability. He must answer as an executor when actions are instituted against him; he " is liable to all the trouble of an executorship, without any of the profits or advantages." (2 Wendell's Blackstone, p. 507; Crooks v. Turpin, 1 B. Mon. 185.)
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
On the filing of the petition by Enos, and the service on Wright of the notice required by the statute, the Court acquired jurisdiction to adjudicate the question of insanity and to appoint a guardian. On determining that Wright was insane, the Court had authority to select a guardian, and its discretion in the selection of a proper person was in no degree restricted by the fact that in his petition Enos prayed that he himself be appointed. Under that petition, the Court had authority to exercise its discretion as to the person to be appointed. It appointed Enos, coupled with a condition that he execute a proper bond, as required by the statute. The law annexes this condition to the appointment, and the Court had no power to dispense with it. After a sufficient time had been allowed for that purpose, Enos failed to execute the bond, and his appointment remained ineffectual and incomplete. He never became the guardian of Wright, and the proceeding remained in fieri until a guardian was appointed and qualified. The Court did not lose its jurisdiction to appoint a guardian, because the person first selected failed to qualify. Wright had his day in Court, was notified of the proceeding, and was bound to take notice that Enos failed to qualify, and that the Court would appoint another in his stead. Having had one notice of the first step in the proceeding, Wright was bound to take notice of every subsequent step until a guardian was appointed and qualified, or the application otherwise definitely disposed of. The order appointing the plaintiff recites the fact that he was appointed because Enos failed to give the requisite bond. His appointment was not a step in a new and original proceeding commenced by him, but in the former proceeding commenced by Enos. The plaintiff, it is true, filed a petition praying that he be appointed guardian; but this was superfluous, as the Court had authority to appoint him without any petition for that purpose; and the order shows on its face that he was appointed in the original proceeding, for the reason that Enos had failed to give the requisite bond.
We are, therefore, of opinion that the appointment of the plaintiff was valid.
Order and judgment reversed, and cause remanded for a new trial.