Mullen v. Dunn — 134 Cal. 247

Majority

p. 247

[S. F. No. 1869.

Department One.

—September 30, 1901.]

MARGARET A. MULLEN, Respondent, v. CORNELIUS C. DUNN, Appellant.

Headnote

Action upon Note — Insane Dependant—Service op Summons—Appearance by Guardian—Jurisdiction—Appeal.—In an action upon a note, found to have been executed by the defendant when he was competent to contract, though he was found to have been afterwards committed to an insane asylum, where it appears that the service of summons was made both upon the defendant and upon his duly appointed guardian, and that the answer was en- • titled in the name of the defendant, in which the guardian answered “for said insane person and for himself,” the court acquired jurisdiction of the person of the insane defendant, and the judgment against him, being supported by the pleadings and findings, will be affirmed upon appeal therefrom.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The court found that the defendant was competent to contract when the note sued upon was executed, though subsequently committed to an insane asylum. Further facts are stated in the opinion.

Eugene F. Bert, and A. Ruef, for Appellant.

John W. Bourdette, and Andrew Thorne, for Respondent.

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

p. 248

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.