I cannot concur in the majority opinion. My views as to what notice of application for appointment of a guardian is necessary as indicated by the provision of section 1431, C. O. S. 1921 [O. S. 1931, Sec. 1419] were expressed in my dissenting opinion in Harness v. Myers, 143 Okla. 147, 288 P. 285. Therein is pointed out the error of the majority opinion holding that our statute on probate matters, including appointment of guardians, was adopted from California. I also pointed out that the case of Asher v. Yorba, 125 Cal. 513, 58 P. 137, upon which the so-called rule of law adopted in this state seems to have been based, has no application whatever where a stranger to the family makes application for the appointment as guardian of a minor, resident of the county, and in the care and custody of its parents, for there the parent and not a stranger was appointed.
It is not my purpose here to again cite the authorities supporting my views.
The case of Harness v. Myers, supra, largely relied upon in the majority opinion herein as re-adopting the so-called California rule, is distinguishable from the instant case. In fact, the majority opinion is in conflict with the principles of law and justice stated therein. It was there pointed out that if the minor has a father and mother living in the county, actual notice to them is required, for in the body of the opinion it is said:
"If the minor had a father and mother living and they had the custody of the child, and a stranger was asking to be appointed as guardian, of course, a judge, who performs his official duty, would require some sort of actual notice on the parents."
I heartily agree with that statement, and had hopes that when the occasion arose this court would recognize the principles there announced and adopted as the law of this state. But not so. It is now by the majority opinion made the rule in this state that an absolute stranger can make application to the county court and be appointed the guardian of a minor who resides with its parents in the county where the application is made and be appointed guardian of its property without any actual notice to the parent.
Again the case of Harness v. Myers supra, is distinguishable, for therein it was specifically stated that the mother of the minor signed a waiver of her rights to be appointed as guardian of her daughter. Not so in the instant case. The majority opinion states clearly that the mother of the minor resided in the county and had the care and custody of the minor, and that the minor resided in the county, and that no personal notice of the application for the appointment of the guardian was given to the mother of the minor, an entirely different state of facts from those in Harness v. Myers, supra. The father was dead and the mother was the only custodian to whom notice could be given.
Mr. Justice Harrison, in Jones v. Snyder, Gdn.,121 Okla. 255, 249 P. 313, in discussing *Page 58 the effect of fraudulent concealment of jurisdictional facts, pointed out that under section 1431, C. O. S. 1921 [O. S. 1931, sec. 1419] "The fact of notice to the father and fact of domicile of the child are both jurisdictional facts." Therefore, while jurisdiction to make the appointment is lodged in the county court by the Constitution, jurisdiction over the person depends upon residence in the county and notice.
Relative to the rights of an alleged innocent purchaser of property of an infant, sold by its guardian, Justice Harrison therein said:
"The writer is unable to see wherein the obligation of the state could be paramount to that of protecting minor children against being defrauded of their property." He further points out that the minor must of necessity be "equally innocent, but is utterly helpless to protect itself. It has no option, no voice whatever in the transaction; it is not permitted by law even to raise its voice in its own behalf against the fraud, but like a helpless lamb is led to the slaughter and the law will not hear its cry."
What has been done in a particular case, or in the case under consideration, is not of so much importance as what may be done, and all too often has been done, under the rule reverted to in the majority opinion. It may be conceded that the honest judge will follow the method suggested by Justice Hefner in Harness v. Myers, supra, and require actual notice on the parent where both reside in the county and the minor is in the custody of the parent or parents, but, unfortunately, "if we may judge by the constant criticism of the proceedings in guardianship matters, and by the act of the Legislature in enacting chapter 84, S. L. 1923-1924, shortly before the adoption of the opinion in Myers v. Harness in May, 1925, and while said cause was pending in the court, some county judges are not honest. Under the rule announced in the majority opinion, the county judge is the sole judge of what sort of notice is to be given and how long before the appointment is made that the notice is to be given. A county judge who, for reasons of his own, might desire to assist a designing and unscrupulous person to deprive a minor of its property, could, under the broad power given him in the majority opinion, decide that all the notice necessary would be to call his bailiff and have him go to the courthouse door and cry vive race to the world that a guardian was about to be appointed for a certain minor, and that all persons interested must come into court forthwith and object or forever after hold their peace, and the county judge, being the sole judge of the reasonableness of said notice, could proceed at once to appoint a total stranger as guardian of the minor resident of the county and in the custody of its parents without any actual notice whatever to such parents, and thereafter proceed to sell the minor's land. Such, in substance, would be the effect where notices are posted as in the instant case in many cases where the parents are Indians and unable to read or speak the English language and in many cases of illiterate whites who are unable to read and write.
The natural interest of the parent in the welfare of his child demands that, where the minor's property is about to be sold, the parent in whose custody it is and who is responsible for its support and maintenance should have some sort of actual notice before a total stranger is appointed as guardian of such minor child with power to sell and dispose of its property. Such I think the law requires. It was so held in Myers v. Harness, supra, which is specifically overruled by the majority opinion, and it was not, as stated in the majority opinion, approved or overruled in Harnesr v. Myers, supra. I think it should be adhered to. It would have a tendency to stop some of the pernicious practices of the past. There is no occasion for returning to a rule based on the wrongful construction of one decision in the state of California under which many Indian minors of this state have been stripped of their inheritance.
LESTER, C. J., CLARK, V. C. J., and SWINDALL, J., concur.
Note. — See under (1) 12 R. C. L. 1114.