The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-02-01
SUPREME COURT DECISIONS.
Filled January %. 1891. /

Filled January %, 1S91.l
Appeal from the Superior Court of Los
Angeles county. Judgment by default.)
For appellant, Wells, Guthrie 4 Lee.
For respondent, w. T. Williams.
DEPARTMENT TWO.
y. L. JUSTICE, Respondent,
VS..
GEORGE T. orr guardian of NJ :, ooe
the person and estate of w. i'''-o'
Jesse Justice, an incompe-
tent, Appellant.
This is an action upon promissory
note. A personal judgment for the
against the defendant, OFT, by default,
and from that judgment he appeals.
LII Is alleged in the complaint that Jesse
Justice made and delivered to the plain
III MS promissory note for 81 900, dated
November Is, 1879, and payable five years
after date, with Interest,"; that plaintiff is
sun the owner and holder of the note, and
mat no part of the principal or interest
thereof has been paid; THAT ON the -
day OF May, 1888, by an order of the Su-
perior Court duly made and entered, said
defendant, George Il. Oft, was appointed
the guardian of the estate and person of
said Jesse Justice, and that he is now
such guardian; that on or about the 18th
day OF May, 1888, plaintiff demanded of
lssory note, and the interest thereon,
but said guardian refused to pay said note
or any part thereof;' wherefore, the
plaintiff prayed for judgment against the
defendant, George Il. OFT, as such guard
ian, for the principal and interest due on
the note, amounting to 81, 400.
A summons was issued, addressed to
George L. OFT, guardian, etc." and he
was thereby notified that if he failed to
appear and answer the complaint, the
plaintiff would cause his default to be
entered, and would take judgment
against him for s., 400, and costs of suit.
The summons was served on the defend
ant personally, by delivering to him a
copy thereof and copy of the complaint,
out, so Tar as appears, no service was
made on or notice given to Jesse Justice.
The affidavit shows service on the de-
PENDANT and states the time, but not the
place of service.
On the sd day after the defendant was
served, the clerk of the court, by direction
of the plaintiffs attorney, entered his
default, and on the next day entered
against him personal Judgment for the
amount prayed for in the complaint.
1t is very clear that this judgment can
not be sustained. The facts stated in the
complaint do not show any personal
obligation on the part of the defendant to
pay the note. The obligation, if any,
was on the maker, and the action
should have been brought against him,
though an incompetent, and not against
his guardian. Drown VS.. Chase, Mass.
436; Raymond VS.. Sawyer, 81 Me. 4O6;
Robinson VS.. Hersey, 60 Me- DDS: Coombs
VS.. Janvier, 81 n. j. L. $40; Van Horn
VS.. Ham, 80 N. j. l.. POT; Steel VS..
Young, Watts pal 459; Fox VS.. Minor,
80 Cal. 11S.)
If the action had been properly brought,
the summons would have been served on
both the incompetent and his guardian
(Sec. Al, Sub. 4, G. C. Pr, and it would
then have been the duty of the guardian
to appear and defend the action. (Gron-
fer VS.. Puymirol, 10 Cal. 632.) And if
deemed eXpedient, the court might also
have appointed guardian dd Item to
represent the incompetent. (Sec. 372, c.
C.. P.)
Other grounds for reversal are argued
by counsel, but they need not be consid-
cred.
For the reasons above stated we advise
that the judgment be reversed and the
action dismissed. BELCHER, C.
We concur:
HAYNE, c.,
VAN CLIEF, G..
THE COURT.
For the reasons given in the foregoing
opinion the judgment is reversed and the
action dismissed