Mullen v. Dunn

66 P. 209, 134 Cal. 247, 1901 Cal. LEXIS 754

• Court: California Supreme Court
• Decided: September 30, 1901
• Docket: S.F. No. 1869.
• Status: Published

Opinion

GRAY, C.

This is an action on a promissory note. After a trial, the plaintiff had judgment, and defendant appeals therefrom.

The single contention of appellant is, that the answer in the case was the answer of the guardian, John 0. Dunn, and not the answer of the incompetent, Cornelius C. Dunn, and that there is nothing to show any appearance by or on behalf of the said Cornelius C. Dunn, or that the court ever obtained jurisdiction of his person in the case, and therefore the court had no power to enter the judgment against him from which the appeal is taken.

The defendant, as appears from the pleadings and findings, was an insane person, and his son, John 0. Dunn, was the duly appointed guardian of his person and estate. It also appears that due personal service of the summons was had upon the insane person, as well as upon the said guardian. The answer to the complaint was verified by said John 0. Dunn, and in this verification he states “ that he is the guardian of the person and estate of Cornelius C. Dunn, an incompetent person, and one of the defendants in the above-entitled action.” In the title of the cause, both in the complaint and answer, Cornelius C. Dunn is named as a defendant, and the answer is signed, “ Eugene F. Bert, attorney for defendant.” The first paragraph of the answer reads as follows: “How comes the above-named John 0. Dunn, improperly sued as John C. Dunn, the guardian of Cornelius C. Dunn, an insane person, and answering the complaint of plaintiff herein for said insane person and for himself, avers as follows.”

Section 1769 of the Code of Civil Procedure provides that every guardian “must appear for and represent his ward in all legal suits and proceedings.” It is plain from the language of the answer that the guardian intended to appear for and represent his ward in the case, and that the ward appears and answers by his guardian; and thus the court gets jurisdiction of the person of the ward.

The judgment against Cornelius C. Dunn is supported by „ the pleadings and findings, and there is no merit in the appeal.

The judgment should be affirmed.

Smith, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed. Harrison, J., Van Dyke, J., Garoutte, J.

Hearing in Bank denied.