The record-union., 1895-10-01
AFFIRMED BY THE SUPREME COURT
Judge Johnson's Decision in the Cot
ton Case Is to Stand.
The Only Modification is to Throw Out
an Item of Less Than Five Dol
lars for Interest.


cision Of the Superior Court of this county
DENYING the motion of A. T. Cotton, e.
Lathrop and J. Goldman, defendants and
appellants, for new trial In the sui
brought against them by Eva Z. Trump
ler, an action upon an undertaking exc
cuted by Cotton as principal, and Lathrop
and Goldman as sureties, conditioned for
the faithful performance by Cotton OF his
duties as guardian of the person and
estate of the plaintiff in the sum OF 81 zoo.
The cause was tried by Superior Judge
johnson, and judgment rendered in favor
of the plaintiff for 81 ,250 and interest
thereon from October 8, 1892. and costs.
Defendants demurred to the complaint,
which demurrer was overruled by the
court, and the ruling was assigned as
error. The court says:
"a. T. Cotton was duly appointed the
guardian of the person and estate OF
Eva G.. Trumpler. an infant. by the Fro
bate Court of Yolo County on the 4th day
OF October, 1856, and duly qualified and
filed an undertaking with the other de-
PENDANTS as sureties for the faithful DIS
charge of his duties as such guardian.
Cotton caused to be made and filed on
the 1lth day of February, 1888, an ln-
ventory and appraisement of the estate OF
his ward which had come to his posses
Rion, and showing its value TO be %, ol3 Il.
son the 18th day of July. 1891, the
plaintiff reached her majority. Prior
thereto, and on the 24th day of March,
1890. said Cotton filed an account as guar
dian. showing that there was in his hands
as such guardian Of plaintiff the sum OF
s.. .539 SO in cash, as well as certain prop
erty, real and personal, which account
was duly settled and allowed by said
Probate G ourt.
I'm January, 1891. the said A. 7. Cot
ton, guardian, absconded from the State
of California and ever since has remained
without and absent from the State, and
has never filed any other or final account
Under these circumstances on the 30th
day of March, 1892, Harry +. G. Trump
Ter, brother of plaintiff, made and filed
petition, duly verified, in the Superior
Court of the county of \ olo, setting forth
the facts and showing that the said guar
dian had failed to file his final account
and praying a citation to said guardian,
requiring him to appear and render his
account, ETC.
"Thereupon citation in due form was
ordered by the said court, requiring said
guardian to appear and file his account
on June q, 1892, and upon an affidavit
showing that said guardian was a nom
resident of the State OF California, and a
resident of Victoria, British Columbia,
Dominion of Canada, etc, an order was
made in due form for publication of said
order requiring said guardian TO appear
and file his account. The order was duly
published and copy duly deposited in
the mail directed to said guardian at Vic
toria etc.
Cotton, the guardian, failed to appear,
and upon proof of service of the order as
aforesaid, the Superior Court by order
appointed one +. B. Mering, Esq, ref
cree to prepare, render and present for
allowance the final account of said guar
dian.
The account was made and presented
by the referee, due notice of the settle
ment thereof given, and on the lst day of
Septem ber, 1892, defendants Lathrop and
Goldman appeared by counsel, filed a de-
murrer to the jurisdiction OF the court,
and an answer, objections and exceptions
to the ruling of the court and to its juris
dictiOn.
THE court overruled the objections,
settled the account by its decree, sd
Judged that there was in the hands of
said guardian OF the funds of his ward,
the plaintiff herein, the sum of S4.705 81,
which was decreed to be paid to plaintiff.
'The points made by appellants may
be stated in condensed form thus:
'tirst-In probate matters and in pro-
oeedings relating to guardians, the Supe-
rior Courts can only exercise such special
Jurisdiction as is conferred upon them
by statute, and their powers, and the
mode of their exercise can only be eX-
ercised in the cases and in the mode pro-
vided by statute.
''Second-The Superior Court has no
jurisdiction to settle and allow an account
of guardian except when presented by
him, and there Is no authority for any
other person to return, file or swear TO
an account for him.
"Third-The rendering and filing OF an
account by guardian is jurisdictional,
and without 1t the court has no power In
the premises except to attach the guard
ian and remove him from Office.
"Fourth-In a case where the guardian
has absconded and is without the juris-
diction of the court and has failed to rem
der his account, the case is like that
where the guardian is deceased, and the
sole jurisdiction Is in equity.
"Eifth-The liability of the surety is
dependent upon the liability of the prin-
cipal and does not attach until that of the
latter is determined by court of compe-
tent Jurisdiction.
''Si1th-Harry +. G.. Trumpler had no
interest in the.estate of plaintiff. He was
stranger to the proceedings, and his Pc
tltlon could CONFER no jurisdiction on the
court to take action in the matter"
After disposing of some of appellants
points and referring 10 different sections
OF the Political Code to bear IL out, the
Supreme Court goes on to say:
The affidavit for publication is such as
is required in cases OF publication of sum-
mons in civil action and must be held
sufficient.
THE court having thus by substitute
service obtained jurisdiction OF the per-
N - -