Opinion
Rehearing Denied Sept. 4, 1929
Hearing Granted by Supreme Court Oct. 3, 1929
Application by Findley Buchanan by his guardian ad litem, Thos. D. Aitken, for certiorari against the Superior Court in and for the City and County of San Francisco, and another, to review an order of respondent court declaring petitioner incompetent and appointing a guardian. Writ denied.
COUNSEL
Aitken & Aitken, of San Francisco, for petitioner.
Robert McMahon, of San Francisco, for respondents.
OPINION
PER CURIAM
A proceeding to review an order by respondent court declaring petitioner, who appears herein by his guardian ad litem, to be an incompetent person, and directing the issuance of letters of guardianship of his person and estate.
The petition for letters was filed by William Buchanan, a brother, on January 21, 1929, whereupon an order appointing Saturday, January 26, 1929, at the hour of 10 a.m., as the day and hour for hearing the petition, and directing notice thereof to be given, was made by respondent court. This order directed notice to be given "to Patrick Flannery, the person having the care of said Findley Buchanan, and to the following named relatives of Findley Buchanan residing in this city and county, to wit, William Buchanan, brother, by citation to be served on said parties at least five days before the hearing."
The petition in the present proceeding alleges that "on the same date, to-wit, January 21, 1929, a citation was issued by respondent court, directing your petitioner to be and appear in the courtroom" of the court on the day and at the hour fixed by the order. This citation, which named petitioner and directed him to show cause why a guardian of his person and estate should not be appointed, was attested by the clerk of the court, with its seal attached, and recited that the same was issued by order of the court. According to an affidavit attached to the citation, which was dated January 22, 1929, and filed therewith, the citation was personally served upon petitioner on the day of its issuance. Petitioner did not appear at the hearing, but there was filed on that date a writing, purporting to have been signed and sworn to by a physician, stating that petitioner was under his care, and treatment, and that his physical and mental condition was such that it would be impossible for him to be present.
Petitioner contends that respondent was without jurisdiction to declare him to be incompetent or to appoint a guardian of his person or estate for the following reasons, namely: That no order directing the service of a citation upon him was made, that, notwithstanding the affidavit of service, no citation was in fact served upon him, and that the sworn statement filed by the physician was insufficient to excuse compliance with the requirement of section 1763 of the Code of Civil Procedure, that an alleged incompetent, if able to attend, shall be produced at the hearing. The above section also provides that, upon the filing of the affidavit, "such court or judge must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed. ***" The order fixing the time and place of hearing contained no direction that a citation to the alleged incompetent be issued or served, and no finding appears in the order appointing the guardian that such notice was required or given. The latter order recited that the petition came on regularly for hearing "upon due proof to the satisfaction of said court that notice has been given to the relatives of said Findley Buchanan residing in this city and county, as required by law and as directed by this court. ***" It is contended that the above order shows what notices of the hearing were caused to be given; that consequently the rule that, when the record states what was done, it will not be presumed that something different was done, applies, and it cannot be presumed that an order was made directing a notice to the alleged incompetent.
As was held in the leading case of Hahn v. Kelly, 34 Cal. 391, 407, 94 Am.Dec. 742, the rule by which inspection of the record is governed is that legal presumptions do not come to the aid of the record except as to acts or facts touching which the record is silent. In such case it will be presumed that what ought to have been done was not only done, but rightly done; but, where the record states what was done, it will not be presumed that something different was done. In determining, however, whether a want of jurisdiction appears, the whole record must be consulted, and, notwithstanding that a portion thereof recites facts and acts done which, if the record were otherwise silent, would make it affirmatively show want of jurisdiction, yet, if in another part further acts or facts not irreconcilable with the former be recited which establish jurisdiction, it is sufficient to uphold the judgment.
The present is a case where the presumption that official duty has been regularly performed (Code Civ.Proc. § 1963, subd. 15) should apply, as it is not only averred in the petition that a citation directed to the alleged incompetent was issued by respondent, but the citation recites that it was issued pursuant to the order of the court. The conclusion that such an order was made would not contradict the recitals in the order of appointment, but would be reconcilable therewith. Both acts may have been done, and to so hold would not only be consistent with the record, but in accord with the presumption.
With regard to the sufficiency of the evidence to prove the inability of the alleged incompetent to attend the hearing, the record with the exception of the sworn statement of a physician does not disclose the evidence considered by the court on the question, and it is not alleged that no other evidence was adduced at the hearing. While affidavits are not in their nature the best evidence of issuable facts, they are as a general rule admissible in evidence regarding matters which are incidental to the main proceedings, or as the basis of some preliminary action. 2 Corp.Jur. "Affidavits," § 138, pp. 372, 373. Such was its purpose here, and we cannot say from the record that the evidence before the court was insufficient to support its implied conclusion that the alleged incompetent was unable to attend.
The affidavit attached to the citation shows that the same was served upon petitioner. This was prima facie evidence of the fact; and the question whether the affidavit was true or false cannot be reviewed in this proceeding. While this court may inquire into the question as to whether or not there was any evidence whatever to prove the jurisdictional facts (Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35), its inquiry is limited to that upon which the lower court acted (City of Los Angeles v. Young, 118 Cal. 295, 50 P. 534, 62 Am.St.Rep. 234; Chambers v. Supervisors, 57 Cal.App. 401, 207 P. 288); and, if there was evidence before that tribunal upon which it might act, its order will not be reviewed (Miller & Lux v. Supervisors, 189 Cal. 254, 208 P. 304). The province of certiorari is to review the record, and to determine therefrom whether the subordinate tribunal has exceeded its jurisdiction. The reviewing court is bound thereby, and every intendment must be made to support the judgment. Roe v. Super. Ct., 60 Cal. 93; Halpern v. Super. Ct., 190 Cal. 384, 212 P. 916. In the present instance the jurisdictional facts are sufficiently shown by the record, and the writ is accordingly denied.