I dissent. The petitioner here alleged that there was no evidence introduced in the case before the trial court in support of Geraldine Cullinan's objections to his appointment. This allegation is not controverted by respondents, except that they have made it appear that one of her objections was sustained by proof, viz.: that she was the nominee of the son who was above fourteen years of age. Respondents do not here contend that there was any evidence before the court tending to show that the father of the boy, the relator here, was not a suitable person to be appointed guardian.
The record before us points strongly to the conclusion that the court adopted the view that, if both applicants for letters were suitable persons, the nominee of the minor over fourteen years of age is entitled to preference over the father. They make that contention here, and that is the only contention made so far as the merits of the case are concerned.
Respondents contend that under our statutes, after the minor arrives at the age of fourteen years, his nominee for guardian, if competent and suitable and approved by the court, is entitled to preference over the parent, though the parent may be competent and suitable. Whether this view is correct depends upon our statutes.
Section 10402, Revised Codes, provides: "If the minor is under the age of fourteen years, the court or judge may nominate and appoint his guardian. If he is fourteen years of age, he may nominate his own guardian, who, if approved by the court or judge, must be appointed accordingly." This is in exactly *Page 519 the same language as section 1748 of the California Code of Civil Procedure, before it was superseded in 1931 by sections 1406-1408 of the Probate Code of 1931.
Section 10405 provides: "The father of the minor, if living, and in case of his decease, the mother, being themselves respectively competent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor. A married woman may be appointed guardian." This statute has been in force in Montana in its present form since 1895. So far as it relates to the father of the minor, it has been in effect since 1877, having then been adopted verbatim from the California Codes.
Until 1931 the California statute dealing with this matter was section 1751 of the California Code of Civil Procedure, reading: "The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed guardian of such minor child, in preference to any other person. The person nominated by a minor of the age of fourteen years as his guardian, whether married or unmarried, may, if found by the court competent to discharge the duties of guardianship, be appointed as such guardian. The authority of a guardian is not extinguished nor affected by the marriage of the guardian."
The California statute was originally enacted in 1872, and then was as follows: "The father of the minor, if living, and in case of his decease the mother, while she remains unmarried, being themselves respectively competent to transact their own business and not otherwise unsuitable, must be entitled to the guardianship of the minor." It was amended in 1891 [page 136] to read as above indicated until again changed in 1931.
In California the courts have held that under their statutes, as they existed prior to 1931, when a minor reaches the age of fourteen years his nominee, if suitable and approved by the court, displaces the rights of the parent, even though the parent may be competent and suitable, and have held that in such a case the only question presented to the court for determination *Page 520 is the suitability of the nominee. (In re Meiklejohn's Estate,171 Cal. 247, 152 P. 734; In re McSwain's Estate, 176 Cal. 287,168 P. 117; Collins v. Superior Court, 52 Cal. App. 579,199 P. 352.) That these decisions are correct under the then existing California statutes there can be no doubt. Section 1751 of the California Code, by its express terms, gave the parent the preferential right only so long as the minor was below the age of fourteen years. Our section 10405 does not contain such a limitation. It makes it mandatory that the parent, if competent to transact his own business and if not otherwise unsuitable, must be entitled to the guardianship of the minor. It does not limit the preferential right to letters of guardianship of minors below the age of fourteen years, as did the California statute.
Our legislature has not seen fit to make the same changes in our section 10405 as did California in its corresponding section 1751 involved in the above-cited cases. The difference in the statutes compels a different result. I think under our statutes the father is absolutely entitled, as a matter of right, to be appointed guardian of his minor child, unless it is shown either that he is not competent to transact his own business, or is otherwise unsuitable. This construction does not nullify sections 10402 and 10404. Those sections must be read in conjunction with section 10405. The minor above fourteen years of age is free to nominate a suitable person to act as his guardian, subject to the restrictions of section 10405, viz., that he cannot displace the right of the father or, in case of his decease, the mother, unless they are unsuitable or incompetent to transact their own business, or unless they voluntarily renounce their right to letters. That this is the legislative intent is also apparent from section 5878. It provides, in part, that: "In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considerations: * * * 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows: First — To a parent." *Page 521
Giving section 10402 the most advantageous construction in favor of the minor's nominee, it still would have to be held that the nominee, if competent and suitable, would merely occupy a position of equality, except as to relationship, with the father under section 10405, if he also is competent and suitable, leaving the matter for the court to choose between the two who stood on equal grounds in other respects. Under section 5878, supra, then the father would have the preference.
Respondents by their motion to quash assert that relator has a plain, speedy, and adequate remedy at law by an appeal from the order complained of. As stated in the majority opinion, there was no record made of the testimony, and hence relator believed he could not make his appeal effectual. The extraordinary powers of this court are available by supervisory control when an appeal is inadequate. (State ex rel. Tillman v. District Court,101 Mont. 176, 53 P.2d 107, 103 A.L.R. 376, and cases therein cited.)
Respondents contend that relator could and should have prepared the testimony for use on appeal by means of a bystander's bill. Had he, or someone for him, taken sufficient notes of the testimony, it could have been preserved otherwise than by the official stenographer. (York v. Steward, 30 Mont. 367,76 P. 756.) Respondents by their return have asserted that it was impossible for them to present the evidence to this court, and, this being true, it would likewise seem at least difficult, if not impossible, for relator to have done so on an appeal. At any rate, since the writ of supervisory control does not issue as a matter of course but rests in the discretion of the court (Inre Weston, 28 Mont. 207, 72 P. 512), I think that discretion should be resolved in favor of the use of the writ here. Under the circumstances presented here, if the father is competent and suitable to act as guardian, it would palpably be unjust to permit the appointment, which was apparently made on the erroneous interpretation of the statutes, to stand simply because of the method by which the question is presented to this court. *Page 522
I think we should take jurisdiction of this cause under our supervisory powers. Were I able to agree with what my associates have said on the question of res judicata, I might have seen fit to at least concur in the result announced in their opinion, but I think they are in error in holding that relator's fitness will not have become res judicata, and in holding that he will still have a remedy under section 10083.
Section 10083 has to do with letters of administration of estates of deceased persons. If we concede it has application likewise to letters of guardianship by virtue of section 10463, I think it does not help relator. Section 10083 will not permit a person who has once had his day in court and lost, to relitigate the same questions after the judgment against him has become final. The plea of res judicata has application to orders and decrees in probate proceedings. (In re Baxter's Estate,101 Mont. 504, 54 P.2d 869.) A judgment is conclusive as to every matter tendered by the issues in the proceeding (Swaim v.Redeen, 101 Mont. 521, 55 P.2d 1) and of everything which might have been urged for or against such issues. (Brennan v.Jones, 101 Mont. 550, 55 P.2d 697.) If relator can avail himself of section 10083, he will have to do so by pleadings tendering exactly the same issues that were presented in this proceeding. I think this is a plain case requiring application of the doctrine of res judicata.
In order to afford relator the relief to which I think he is entitled, I believe we should set aside the order complained of in the exercise of the supervisory powers of this court. *Page 523