Los Angeles herald., 1892-03-11
Several Interesting Points Of
Law Brought Out.
Judge Clark Renders a Valuable
Opinion.
A Matter in Which Probate Law Fig
ures Extensively.
The Question OF Serving a Summons
According to the statute-Judg-
mont Given for the
Defendant.

ner Dy j. A. flrtle, guardian ad litem,
va D. V. Waldron. The accompanying
opinion presents several important law
points. The opinion sets forth:
The ultimate purpose Of this action is
to determine title to lot 2, block l.,
Hancock's survey, city donation lots,
city of Los Angeles. 1t was tried upon
an agreed statement OF facts. On June
4th, 1875, a judgment was rendered by
the district court of the seventeenth ju-
dicial district, in suit wherein Gather
inc Waldron, under whom defendant
herein claims title, was plaintiff, and
Mary E. Flashner, plaintiff herein, was
defendant, wherein it was adjudged and
decreed that the said Catherine Wal
dron had good and valid title to said
described premises. and the said Mary
E. Flashner was enJoined from assert
ing any claim in or to the same.
Although plaintiff at bar claims this
to be direct and not collateral attack
upon that judgment, and the first prayer
of her complaint is that it be set aside,
cancelled of record and declared void and
of no effect, yet if the court at the time
jurisdiction OF the subject matter and of
the parties, l am clear that there is
nothing in the facts stipulated that
would justify such decree, and that that
judgment would be conclusive of the
rights of the parties here. That the dis
trict court had jurisdiction OF the sub
ject matter is not disputed, but plaintiff
claims that it did not have Jurisdiction
of the parties because OF failure to
serve the summons therein in the man
ner required by statute. The sheriff
return shows that copy of the sum-
mons and complaint therein was served
upon the Mary E. Flashner, defendant
therein, an imbecile, and that copy of
the summons was served upon Alice
Matfield, her mother and general
guardian. It is urged in plaintiffs
brief that copy of the complaint
should also be served upon such guard
ian. Although not free from doubt, I
am of opinion that q proper construc-
tion of sections 410 and All, code of civil
procedure, does not require that q copy
of the complaint should be attached to
the copy OF the summons required to be
served upon the guardian Of an incom-
petent by subdivision of said section
All. Gray vs.. Palmer, 8 CAL, 636, cited
by plaintiff, do not think in point. 1t
is true that Burnett, j., in his opinion
says: "The twenty-ninth section of the
practice act requires the service of the
summons when the suit is against a
minor under the age of IA to be made by
delivering certified copy of the sum-
mons and complaint to the infant per-
sonally and also to his father, mother or
guardian; )" but the point there decided
kkck s,,fo rnh <Lr
age of IA years, must be personally
served and that the defect was not cured
by the appearance OF his mother. The
question was as to the necessity and
not the method of service. Ad-
mitting. however, that case to
be an authority upon the
question of what constitutes service,
still am of opinion that the law has
been 80 changed as to render it of no
value as a precedent. Section %
of the practice act, in force at the
date of said decision, provided that
copy Of the complaint certified by the
clerk should be served with the sum.
mons, and section 20 OF said act, being
the section under consideration in the
opinion therein, read: "The summons
shall be served by delivering COPY
thereof attached to the certified copy of
the complaint, as follows: "Second, If
against minor under the age of IA
years to such minor personally and also
to his father, mother or guardian, etc.
Third, If against person judicially
declared to be of unsound mind.
or incapable of conducting his
own affairs and to whom a guardian
has been appointed to such guardian"
Said section 410, @. q. P, corresponds
substantially with said section 20, except
that the copy of the complaint
need not be certified, and if there be
two or more defendants resident of the
same county the copy of the complaint
need be served upon one only. But Sec
ton AL, @. G. P. materially differs
from said section 20 of the practice act,
and instead of reading "the summons
shall be served by delivering copy
thereof attached to certified copy OF
the complaint" it reads ''the summons
must be served by delivering copy there
of as follows: Fourth. II the
suit is against person reniding within
this state who has been judicially de-
clared to be of unsound mind or inca
pable OF conducting his own affairs
and for whom q guardian has
been appointed, to such person and
also 0lS Kuaruldus I1HQ CQ0r0 D0ou
other defendants in said action than
Mary F. Flasher, the plaintiff here, res
ident in said county, the law would not
have required that copy OF the COM
plant should be served even upon her
and if not upon her, certainly not upon
her guardian. Indeed, said sections,
4l0 and AL, G. G. p, could, think, be
construed as requiring a copy of the
complaint to be served with the copy of
the summons upon the guardian Of an
incompetent as well as upon the in
competent himself, only upon the the
ory that the guardian is defendant
which is in no legal sense true. JUS
tice vs.. OFT, 81 Gal. $780,.
Again, l ana inclined to agree with
counsel for defendant that from the
facts stipulated it does not appear that
at the time of the service of the sum-
mons in the case of Waldron vs.. Flash
ner, supra, the defendant therein had q
regularly appointed guardian. / am of
opinion that section IA Of the act ap-
proved April 10. 1850, entitled IAN act
to provide for the appointment and pre-
scribe the duties Of guardians" !" should
be construed with reference to section
OF said act az amended by an act ap-
proved March 20. 1851, and that act so
/, amended is substantially the same al
/, Tho nroviaiona If tho roda I, rnn thu aa mo