Murphy v. Superior Court of Santa Clara County

Citations

• 84 Cal. 592
• 24 P. 310
• 1890 Cal. LEXIS 849

Syllabus

<p>Writ of Prohibition — Remedy by Appeal. — The writ of prohibition will not lie where it appears that the inferior court has jurisdiction of the subject-matter, and there is a remedy by appeal.</p> <p>Id. — Collateral Attack upon Jurisdiction. — When an inferior court has power to determine a jurisdictional fact, its determination cannot be collaterally attacked upon an application for a writ of prohibition.</p> <p>Appointment of Guardian — Jurisdiction of Superior Court.—The superior court has general jurisdiction of the matter of the appointment of guardians, and, as an incident to its jurisdiction, it has the power to hear and determine whether a testamentary guardian has been legally appointed or not; but if the fact of the appointment of a guardian by</p> <p>I will or deed were established, the superior court has no jurisdiction to appoint a guardian, and its order appointing a guardian would he a nullity.</p> <p>Id. — Guardian by Deed — Testamentary Guardian — Bond.—A guardian appointed by deed must be considered as a testamentary guardian, since the appointment does not take effect until the death of the parent; and in order to become a guardian by deed, it is not enough that he be named in the deed as guardian, but he must also qualify by giving bond, as required of testamentary guardians.</p> <p>Id. — Appointment by Court without Bonds. — A guardian of the property of minor children, appointed by the court, does not become a guardian unless he gives the bond required by section 1754 of the Code of Civil Procedure; and the court has no power in its order of appointment to dispense with bonds.</p> <p>Id. —Estoppel to Deny Guardianship.—There is no estoppel to deny the fact of guardianship by reason of neglect to give the bond required by law, if no money or property appears to have been received by virtue of the appointment.</p> <p>Id. —Appealable Order — Prohibition.-—An order requiring one who has been appointed guardian of the estate of a minor, hut who