In Re the Guardianship of the Persons & Estates of Morehouse, 169 P. 365 (Cal. 1917). · Go Syfert
Search
In Re the Guardianship of the Persons & Estates of Morehouse, 169 P. 365 (Cal. 1917). Cases Citing This Book View Copy Cite
49 citation events across 5 distinct courts.
Strongest positive: Thompson v. Vallembois (calctapp, 1963-05-09)
Treatment trajectory · 1924 → 2026 · click a year to view as-of
1924 1975 2026
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) Thompson v. Vallembois
Cal. Ct. App. · 1963 · confidence medium
(Smith v. Pelton Water Wheel Co., 151 Cal. 394, 397 [ 90 P. 934 ]; In re Morehouse, 176 Cal. 634, 636 [ 169 P. 365 ]; Jones v. Moers, 91 Cal.App. 65, 68 [ 266 P. 821 ]; McNeill v. Wheat, 111 Cal.App. 79 [ 295 P. 105 ]; Wyoming Pacific Oil Co. v. Preston, 171 Cal.App.2d 735, 741 [ 341 P.2d 732 ]; Turline S. A. v. Jury, 207 Cal.App.2d 655 [ 24 Cal.Rptr. 625 ]; Phillips v. Trusheim, 25 Cal.2d 913, 917 [ 156 P. 2d 25 ]; Benjamin v. Dalmo Mfg.
discussed Cited as authority (rule) Wells Fargo & Co. v. City & County of San Francisco
Cal. · 1944 · confidence medium
(Borenstein v. Borenstein, 20 Cal.2d 379, 381 [125 P.2d 465 ]; City of Salinas v. Luke Kow Lee, 217 Cal. 252, 255 [ 18 P.2d 335 ]; In re Morehouse, 176 Cal. 634, 636 [ 169 P. 365 ] ; Lake v. Bonynge, 161 Cal. 120, 126 [ 118 P. 535 ] ; People v. Norris, 144 Cal. 422 [ 77 P. 998 ]; Canadian etc. Co. v. Clarita etc. Co., 140 Cal. 672, 674 [ 74 P. 301 ] ; see 15 Cal.Jur. 47, § 139.) In the absence of extrinsic fraud or mistake (see Olivera v. Grace, 19 Cal.2d 570, 575 [ 122 P.2d 564 , 140 A.L.R. 1328 ]) a judgment so attacked cannot be set aside unless it is void on its face.
discussed Cited as authority (rule) Mueller v. Elba Oil Co. (2×)
Cal. · 1942 · confidence medium
(In re Morehouse, (1917) 176 Cal. 634, 636 [ 169 P. 365 ]; Estate of Gardiner, (1941) 45 Cal.App.2d 559, 564 [ 114 P.2d 643 ].) Even if the question here is not settled for us by the fact that the bankruptcy court determined its own jurisdiction we must hold that the petition was jurisdictionally adequate.
discussed Cited as authority (rule) Borenstein v. Borenstein
Cal. · 1942 · confidence medium
Where, as here, the request to vacate is not based upon extrinsic fraud and is made approximately three years after entry and finality of the decrees, the motion is “governed by the rules applicable to collateral attack and must therefore be presented and determined upon the judgment-roll alone” and “every presumption is in favor of the validity of the judgment, and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it.” (City of Salinas v. Luke Kow Lee, 217 Cal. 252, 255 [ 18 P. (2d) 335 ]; In re Morehouse, 176 Cal. 6…
discussed Cited as authority (rule) Richert v. Benson Lumber Co.
Cal. Ct. App. · 1934 · confidence medium
(People v. Ah Sam, 41 Cal. 645, 650 ; Spencer v. Branham, 109 Cal. 336 , 340 [ 41 Pac. 1096 ]; Bell v. Krauss, 169 Cal. 387, 391 [ 146 Pac. 874 ]; In re More- house, 176 Cal. 634, 636 [ 169 Pac. 365 ]; Thomas v. Superior Court, 6 Cal. App. 629, 632 [ 92 Pac. 739 ]; Wheelock v. Superior Court, 67 Cal. App. 601, 603 [ 227 Pac. 931 ]; Jones v. Superior Court, 78 Cal. App. 163, 165 [ 248 Pac. 292 ]; Colthurst v. Harris, 97 Cal. App. 430 [ 275 Pac. 868 ]; Estate of Hunter, 99 Cal. App. 191, 196 [ 278 Pac. 485 ].) The stipulations in respect to continuance do not affect the situation.
discussed Cited as authority (rule) Macbeth v. Macbeth
Cal. · 1933 · confidence medium
(City of Salinas v. Lee, 217 Cal. 252 [ 18 Pac. (2d) 335 ]; In re Morehouse, 176 Cal. 634, 636 [ 169 Pac. 365 ].) In other words, the invalidity must appear on the face of the judgment-roll (Whitney v. Daggett, 108 Cal. 232, 235 [ 41 Pac. 471 ]), which, in the present case, fails to disclose any impropriety in the entry of defendant’s default or in the entry of the interlocutory decree.
discussed Cited as authority (rule) City of Salinas v. Luke Kow Lee
Cal. · 1933 · confidence medium
(In re Morehouse, 176 Cal. 634, 636 [169 Pac. *256 365]; Lake v. Bonynge, supra; Canadian etc. Co. v. Clarita, 140 Cal. 672, 674 [ 74 Pac. 301 ]; 15 Cal. Jur. 47, sec. 139.) This being so, every presumption is in favor of the validity of the judgment, and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it.
discussed Cited "see, e.g." Guardianship of Pankey (2×)
Cal. Ct. App. · 1974 · signal: see also · confidence medium
See also In re Morehouse (1917) 176 Cal. 634, 636 [ 169 P. 365 ]; and Estate of Eikerenkotter (1899) 126 Cal. 54, 55 [ 58 P. 370 ].) In 1921 (Stats. 1921, ch. 139, § 1, p. 138) the Legislature added the language now found in the second sentence of section 1441 of the Probate Code (see fn. 2 above), reading: “In all cases notice must be given to the parents of the minor or proof made to the court that their addresses are unknown, or that, for other reason, such notice can not be given.” The court in In re Dahnke (1923) 64 Cal.App. 555 [ 222 P. 381 ] upheld an order vacating the appointment…
In the Matter of the Guardianship of the Persons and Estates of FRANK BEVERLY MOREHOUSE Et Al., Minors; FRANK B. MOREHOUSE, Guardian, Etc., Appellant; MERLE M. MOREHOUSE, Respondent
S. F. No. 8323..
California Supreme Court.
Dec 7, 1917.
169 P. 365
H. I. Stafford, and W. F. Stafford, for Appellant., Arthur H. Barendt, for Respondent.
Henshaw.
Cited by 25 opinions  |  Published
HENSHAW, J.

The facts on this appeal are not in dispute. On January 3, 1916, the appellant, Frank B. More-house, and the respondent, Merle M. Morehouse, his wife, separated. There were two minor children of the marriage. The mother took the two small children from the family home in San Francisco and went to Alameda County, where she still resides. The father remained at the family, home in San Francisco. On June 18, 1916, the father went to Alameda and brought the children back to San Francisco, writing to his wife that he had done so and inviting her to return to the family home. She neither answered nor returned. On August 3, 1916, he filed a petition in the superior court of the city and county of San Francisco for the appointment of himself as guardian of the children.. The only relatives of the children residing in San Francisco at the time were Mrs. Stewart, an aunt, and Frank B. Morehouse, a grandfather. They both requested the appointment of appellant in writing, and both had notice of the application.'

On August 3,1916, an order was made appointing appellant guardian of the persons and estates of the minors. On February 1, 1917, the mother gave notice that she would move to set aside this appointment on February 9, 1917, which last date is more than six months after the order appointing appellant guardian was made and given. The motion was made on February 9, 1917, and was based on the ground of fraud and lack of jurisdiction. The charges of fraud were voluntarily withdrawn and the court found that no fraud[*636] had been practiced or attempted, but the court made its order vacating the appointment on-the ground that “the same was inadvertently made, in "that the court had no jurisdiction to do so.” As a motion for relief, predicated upon the provisions of section 473 of the Code of Civil Procedure, the motion having been made more than six months after the date of the judgment, the court should have refused to entertain it. (People v. Ah Sam, 41 Cal. 645; Spencer v. Branham, 109 Cal. 337, [41 Pac. 1095]; Estate of Eikerenkotter, 126 Cal. 54, [58 Pac. 370].) It is not sufficient that notice shall be given within the six months that a motion will be made after the six months. The motion itself must be made and the action of the court requested on it within the six months.

It follows, therefore, that the order of the court vacating the appointment can" be upheld only if the decree making the appointment is void on its face. It is contended that it so void for lack of notice. It has been said that-all of the relatives in the city and county of San Francisco appeared and requested the appointment of the appellant in writing, and the order appointing the guardian recites this and the additional fact that they had notice. In Whyler v. Van Tiger, 2 Cal. Unrep. 800, [14 Pac. 846], a guardian, as here, had been appointed without any notice. It was so found and an attack was made upon the acts of the guardian so appointed as being without authority. This court declared that “We think that Mrs. Whyler was a guardian when she executed the lease to the defendant.” The only jurisdictional notice required is one to be given to the person having the custody of the minor. (In re Lunberg, 143 Cal. 402, [77 Pac. 156] ; Estate of Eiherenkotter, supra; Code Civ. Proc., sec. 1747.)

This disposes of the ground upon which manifestly the court acted in setting aside the decree. Respondent, however, further argues that the order of appointment is void on its face as not being in accordance with and supported by the allegations of the petition, and also that the court was without jurisdiction to deprive the mother of her maternal rights under the facts pleaded and found. Without regard to the merits of the contentions thus advanced, it must suffice to.say that they are not such as to establish a lack of jurisdiction to make the decree appointing a guardian, nor yet sufficient to establish that the decree so made is void on its[*637] face. For any relief against the decree appointing the guardian the respondent must proceed by direct action, and not by motion such as the one here under consideration.

The order appealed from is therefore reversed.

Melvin, J., and Lorigan, J., concurred.