This action was brought in the district court of Creek county, in 1920, by Ada Myers, as plaintiff, the defendant in error herein, against John R. Harness, and another, as defendants, the plaintiff in error herein. The purpose of the action was to recover possession of and to quiet title to the southwest quarter of section 11, township 18 north, range 10 east, and to cancel certain guardianship sale proceedings in the county court of Muskogee county, and deed made pursuant thereto.
It is claimed that the guardianship sale was illegal and void because the appointment of the guardian was irregular and void for the reason that no notice of the hearing on the petition for the appointment of a guardian, except by posting notices as directed by the county judge, was served on the mother, who was the custodian of the minor. It is further contended that notice of the sale of the land was not in compliance with the statute governing guardians' sales and was, for that reason, void. Attached to the petition were copies of the proceedings in the county court for the appointment of a guardian and for a sale of the land, except the order of appointment of guardian and the waiver of the mother of her right to appointment. The defendants demurred to the petition on the ground that it did not state a *Page 148 cause of action. The trial court sustained the demurrer. The case was brought here for review by the plaintiff, and the trial court was reversed on the ground that the posting of notices of the hearing on the petition for appointment of a guardian was not sufficient to give the court jurisdiction, and that the mother and relatives should have some kind of actual personal information, or notice. Former holdings of this court that posting of notices was sufficient were overruled. Myers v. Harness, 116 Okla. 268, 244 P. 1109.
When the case was again tried in the district court, after the former appeal, the order appointing the guardian and the waiver of the mother were introduced in evidence. The trial court found that there was no fraud practiced in the sale of the land and that the sale was regular; that the mother of the minor had notice and had waived her right to appointment, but that the stepfather also was entitled to actual notice of the hearing on the petition for appointment of a guardian and that the appointment was void because the step-father was not served with such actual notice. The title to the land was quieted in the plaintiff, and the defendant has brought the case here for review.
The land was sold by the guardian in 1910, and suit was brought to recover the same in 1920, soon after the minor became of age.
At the time guardian was appointed in this case, was it necessary for the county judge, before making the appointment, to cause actual notice to be given to the relatives of the minor residing in the county and to any person having the care of such minor, in order to acquire jurisdiction to make the appointment? Section 1431, C. O. S. 1921, reads in part as follows:
"* * * Before making the appointment the judge must cause such notice as he deems reasonable to be given to the relatives of the minor residing in the county, and to any person having care of such minor."
In the case of Lester v. Smith, 83 Okla. 143, 200 P. 780, this court held that the probate procedure of Oklahoma came from California, and there said:
"Section 6522, Revised Laws of Oklahoma, 1910, provides as follows: * * *
"In Asher v. Yorba et al., 125 Cal. 513, 58 P. 137, the Supreme Court of California had this same section of the statute under consideration, and laid down the following rule:
"Under Code Civ. Proc. para. 1747, providing that, before making appointment of a guardian, the court must cause such notice as it deems reasonable to be given to the person having care of the minor, and such relatives as the court may deem proper, posting of notice for 10 days in three public places, under direction of the court, is sufficient.
" 'Under Code Civ. Proc. para. 1747, providing that, before the appointment of a guardian, notice shall be given to such relatives of the minor residing in the county as the court may deem proper, the court has authority to give notice by posting for 10 days in three public places.'
"The probate procedure of Oklahoma was acquired from California. California construed this section in 1899, when the above opinion was rendered by the Supreme Court. It is presumed the Legislature of Oklahoma knew of this decision of the Supreme Court of California and adopted the above statute with full knowledge of this decision. Therefore this decision is very persuasive with us. We think the notice was sufficient."
The section of the statute requiring notice of the appointment of a guardian was construed by the California court in 1899, long before statehood and long before the statute was adopted by this state. In the Smith-Lester Case, supra, this court said that it was presumed the Legislature of Oklahoma knew of this decision of the California court and adopted the statute with full knowledge of the decision. Then, on the advent of statehood, the statute was adopted and it became the law, as construed by the California Supreme Court.
In the Asher-Yorba, Case, supra, the California court said:
"* * * Upon a careful reading of the statute it will be found that it is a matter of discretion upon the part of the court to give any notice whatever to the relatives residing in the county. The statute says the notice is to be given to those relatives of the minor residing in the county, 'as the court may deem proper'."
In the case of In re Chin Mee Ho (Cal.) 73 P. 1002, decided in 1903, the court said:
"* * * From this it will be seen that the only persons to be notified are those having the care of the minor, and such relatives residing in the county as the court may deem proper. The relatives to be notified and the length of the notice are entirely at the discretion of the judge to whom the petition is presented. * * *"
From 1886 to the present time the California court has uniformly held to this construction of the statute. Burroughs v. De Couts, 11 P. 739.; in re Lundberg, 77 P. 156 *Page 149 ; In re Morhoff's Guardianship, 179 P. 294.
The first time the question was before this court was in 1916, in the case of Crosbie v. Brewer, 68 Okla. 16,173 P. 441. There it was said:
"Plaintiffs next contend that section 6522, Revised Laws of 1910, requires written personal notice to be given to the relatives in the county. That part of the statute referred to reads as follows: * * *
"In the case at bar the court caused three written notices to be posted up in three public places in the county, and plaintiffs argue that this was only constructive notice and was not the notice intended by the above statute. It seems it was the intention of the law to leave the nature of the notice to the discretion of the county judge, and the only notice required to be given was one deemed reasonable by the judge."
The question was again before this court in 1923, in the case of Ross v. Groom, 90 Okla. 270, 217 P. 480. A thorough and exhaustive study of the question was there made, and it was said:
"The defendants next contend that the appointment of Hudson as guardian was void because notice of the application for appointment was not personally served on the parents of the minor. As far as the record is concerned, it does not appear whether the parents filed a waiver of notice of the hearing, neither does the order of the county court fixing the date of the hearing on the petition for appointment and the notice which he deemed necessary to be given thereon appear in the record. The defendants attached to their answer a copy of a notice of hearing on the application which was published in a weekly newspaper for two consecutive weeks, and also attached the order appointing the guardian, which, recited that notice had been given by publication for two consecutive weeks. In the absence of a statutory provision requiring notice to be given of the appointment of a guardian the appointment can be made without notice. Murphree v. Hansom (Ala.) 72 So. 437; Mahan v. Steele (Ky.) 58 S.W. 446; Kelly v. Edwards, 38 Mich. 210; State v. Bazille (Minn.) 84 N.W. 120; Morehouse v. Cooke, Hopk. Ch. (N.Y.) 228: Farrar v. Olmstead, 24 Vt. 123; * * * Hanly v. Russell, 63 N.H. 614. We must, therefore, look to the statute of this state for the purpose of determining what notice is required to be given for the appointment of a guardian. * * *
"It seems to us that according to the plain language of the statute the only notice required to be given is such as the county judge deems reasonable."
In 1924 the question was again before this court in the case of Crabtree v. Bath, 102 Okla. 1, 225 P. 924. In that case the only notice given was by posting. The notice was held sufficient, and the court said:
"We think that this contention is not a new question, but is disposed of in the case of Asher v. Yorba, 125 Cal. 513, 58 P. 137, where, under the same kind of statute, the court said: 'The kind or character of the notice to be given is a matter for the judge to determine.' And, where personal notice is not absolutely required, a notice by posting is sufficient.
"In the case of Ross v. Groom, 90 Okla. 270, 217 P. 480, being case No. 14005 on the docket of this court, in construing this same statute, this court said:
" '* * * Under our statute, personal notice on the relatives of the minor residing in the county, or persons having the care of the minor, is not required, but only such notice as the county judge deems reasonable.'
"The notice having been given by posting, in accordance with the direction and order of the county judge, and the county court being a court of general jurisdiction in probate matters, we think, under the above construction of the statute, in the light of the principle laid down in the case of Wolf v. Gills,96 Okla. 6, 219 P. 350, * * * that the allegations of the petition on this ground did not state a cause of action, and the demurrer was properly sustained."
In the very thorough review of the question in the case of Ross v. Groom, supra, it is shown that since 1886 the California courts have uniformly held that the manner in which the notice shall be given to the relatives of the minor residing in the county, and to the persons having the care of the minor, is left to the judgment and reasonable discretion of the probate judge, and that probate sales; in this state, since statehood, have been made according to the interpretation placed on the statute by the California court. That is the construction that had been placed on the statute by the California courts at the time the statute was adopted by this state. Since statehood it has been uniformly followed by the judges and the bar of this state, and by this court until this case was here on the former appeal in 1925, when the former decisions of this court were overruled and for the first time in this state it was held that personal service must be had on the relatives and on the person having the care of the minor before the court could acquire jurisdiction to appoint the guardian. We therefore hold that at the time Westlake was appointed guardian herein it was not necessary for the *Page 150 county judge to cause actual notice to be given to the relatives of the minor residing in the county and to any person having the care of the minor, in order to acquire jurisdiction to make the appointment.
In the Lester-Smith Case, supra, this court held that the probate procedure of Oklahoma was acquired from California and that California had construed this section in 1899, in the case of Asher v. Yorba, supra, and that it was presumed the Legislature of Oklahoma knew of this decision of the California court and adopted the statute with full knowledge of the decision.
In 25 R. C. L. 1070, § 294, it is said
"It is the well-settled general rule that when a statute has been adopted from another state or country, the judicial construction already placed on such statute by the highest courts of the jurisdiction from which it is taken accompanies it, and is treated as incorporated therein. The presumption, in the absence of an expression of legislative intention to the contrary, is that the law was enacted in the light of the construction given it by the courts of the state or country from which the statute was taken. The same rule applies when a state statute has been literally or substantially adopted by a territorial Legislature, or by Congress, or is imposed by Congress on a United States territory."
We hold, therefore, that after statehood, and prior to the decision in this case on the former appeal in 1925, it had been the uniform rule that no personal service of notice of the appointment of a guardian was required, but that on such appointment it was discretionary upon the part of the county judge to give such notice as was deemed reasonable to the relatives residing in the county and to any person having the care of the minor.
In this case, B.F. Westlake filed his petition praying for his appointment as guardian in the county court of Muskogee county on the 31st day of March, 1909, and alleged, in part, that the minor had no guardian, that she was six years of age, resided at Boynton, Okla., and was under the care of Ellen Smith, its mother, and that the father, Lewis Myers, was dead. The records of the county court of Muskogee county show that on the 31st day of March, 1909, the county judge entered this order:
"And comes B.F. Westlake, and files and presents to the court his petition, praying for his appointment as guardian of the above-named minor, and the court being well and sufficiently advised in the premises, doth order that said petition be, and it is hereby set for hearing on the 16th day of April, 1909, and that notice thereof be given for ten days, by posting three notices in three of the most public places in Muskogee."
The order was made on the 31st day of March, 1909, and the hearing was set for the 16th day of April, 1909, and the order directed that notice thereof be given for ten days by posting three notices in three of the most public places in Muskogee. In pursuance of this order the county judge issued the following notice:
"Notice is hereby given that B.F. Westlake has filed in said court a petition, praying that B.F. Westlake be appointed guardian of Ada Myers, minor, and that Friday, the 16th day of April, 1909, at 10 o'clock a. m. of said day, being a day of a regular term of this court, to wit, of the April term, A.D. 1909, at the county court room in Muskogee in the county of Muskogee, at Muskogee, when and where you are hereby cited to appear and show cause, if any you have, why the said petition should not be granted.
"Witness the judge of said court, and the seal thereof affixed this 31st day of March, A.D. 1909."
The affidavit of posting shows that one copy was posted at the courthouse, one at the Indian Agency door, and one at the post office, and that said notices were posted on the 31st day of March 1909.
On April 16, 1909, the mother filed this waiver:
"To the Honorable W.C. Jackson, County Judge:
"I hereby waive my right to be appointed guardian of my daughter, Ada Myers, and request that B.F. Westlake be appointed guardian for said Ada Myers."
In the Lester-Smith Case, supra, George Williams, the person making application for appointment as guardian, was the stepfather of the minor, and the minor resided with the step-father and its mother. The county judge ordered that notice of the hearing be given by posting notices in three public places in Carter county for ten days before the day of hearing. This was the only notice given of the appointment. The appointment was upheld in that case, and the appointment was made on the 20th day of February, 1911. The defendant Harness, in this case, acquired his deed to the land on the 25th day of February, 1911. In this case, the minor had a step-father and a mother. The mother filed a waiver and requested the appointment of Westlake. In the Lester-Smith Case the application was made for and on behalf of the step-father, *Page 151 without any application or waiver from the mother.
In the Ross-Groom Case, supra, the application for appointment of guardian was filed on May 13, 1910, and the point was made that the appointment of Hudson as guardian was void because notice of the application for appointment was not personally served on the parents of the minor. This court upheld the appointment.
In the Crabtree-Bath Case, supra, William Hunter was appointed guardian in 1909, which was prior to the time of the appointment of the guardian in the case at bar. The appointment was upheld by this court. The court further held that the question was not a new one in this state, but was disposed of in the case of Asher v. Yorba, supra. The Asher-Yorba Case was decided in 1899.
It therefore follows that under the law of this state, in force at the time this guardian was appointed, the posting of notices in three public places, pursuant to order of the county judge, as was done in this case, was sufficient to give the court jurisdiction to make the appointment. The appointment was therefore valid.
It is the duty of the county judge, when a petition is filed before him asking for the appointment of a guardian, to make inquiry as to the person having the care of the minor and its relatives. When these facts are made known to him, he is then in a position to know what character of notice should be given and to whom it should be given. The statute uses the word "relatives." This is a very indefinite term. In many cases it would be difficult to ascertain the names of the relatives; and again, there might be unknown relatives in the county. 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. If the minor had no parents, the judge would doubtless make inquiry as to the identity of the near relatives, and after getting this information, would require such notice to be given them as he deemed reasonable. In the instant case the petition advised the county judge that the father was dead and that the child was living with its mother. The mother filed a waiver and requested the appointment of Westlake as guardian. She, of, course, had actual notice of the appointment. The record discloses that no notice was served upon the step-father. The proceedings, however, were in compliance with the law as it existed at the time this guardian was appointed, and, since this is true, the rights accruing to the purchaser at guardian's sale, and to subsequent purchasers, cannot be disturbed by reason of the fact that at a later date the law was changed by judicial construction. In the case of Douglass v. Pike County,101 U.S. 677, 25 L.Ed. 968, Mr. Chief Justice Waite, speaking for the Supreme Court of the United States, said:
"* * * The true rule is to give a change el judicial construction, in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of a legislative enactment."
We hold that, since the appointment of the guardian was in compliance with the statute, at the time it was made, the fact that at a later date this court gave a different construction to the statute could not affect rights acquired by the purchaser at the guardian's sale, and that all rights accruing to the parties under the law as it existed previous to the subsequent construction of the statute by this court in this case on its former appeal cannot be disturbed. In other words, the construction placed by the court on the statute is not retroactive, but prospective, and, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of legislative enactment.
Since the sale was made and the guardian was appointed in accordance with the law as it existed at the time the sale was made and the guardian was appointed, the plaintiff cannot recover herein on the ground that the appointment of the guardian was void.
In the former appeal of this case the record disclosed that the trial judge sustained a demurrer to the petition. This court, on appeal, held that the demurrer should have been overruled. The case was reversed, the demurrer was overruled, and an answer was filed. When the case was again tried, the order appointing the guardian and the waiver of the mother were introduced in evidence. This makes an entirely different *Page 152 state of facts from that presented by the demurrer on the former appeal. The waiver filed by the mother shows that she had actual knowledge of the application for appointment. On the hearing of the application for appointment, the court entered this order:
"And comes on for hearing the petition heretofore filed herein by B.F. Westlake, praying for his appointment as guardian of the above-named minor, and it appearing to the satisfaction of the court that sufficient notice of this hearing has been given as appears by proof of posting notices filed herein on this day and by waiver of notice of hearing said petition by the mother of said minor, and her request for the appointment of said petitioner, and the court having heard said petition, and being well and sufficiently advised in the premises, doth grant the prayer of said petition, and doth order that the said B.F. Westlake be, and he is hereby appointed guardian of the said Ada Myers, a minor, upon his taking and subscribing the oath of office as required by law, and executing a bond as required by law in the penal sum of $500 with sufficient sureties to be approved by the judge of this court.
"And comes B.F. Westlake, and in compliance with the above order of this court, files and presents to the court his bond in the sum of $500 with the Southern Surety Company as surety thereon for his appointment as guardian of said minor, and the court having examined said bond and being well and sufficiently advised in the premises, doth approve the same, and doth order letters of guardianship to issue herein to the said B.F. Westlake."
This record discloses that notice was posted in three public places in Muskogee and that the minor was in the care of its mother and step-father, and that she had actual notice of the application for the appointment of the guardian. We hold that this was sufficient notice, under our statute, to give the court jurisdiction to make the appointment. Since this is true, the plaintiff cannot recover herein on the ground that the appointment of the guardian was void.
The defendant in error contends that the record on this appeal presents the same questions of fact and law for determination as were presented by the record on the former appeal, and urges that the issues involved herein are res adjudicate. There is a very learned discussion of the question of res adjudicata in the case of State of Wisconsin v. Torinus (Minn.) 9 N.W. 725. There it was said:
"* * * The doctrine of res adjudicate, or estoppel by judgment, as it is sometimes less accurately termed, is a rule of law founded on the soundest consideration of public policy. It means that if an action be brought, and the merits of the question be discussed between the parties, and a final judgment be obtained by either party, the parties are concluded, and cannot again canvass the same question in another action. It is founded upon two maxims of the law, one of which is that 'a man should not be twice vexed for the same cause,' the other that 'it is for the public good that there he an end of litigation;' and it is undoubtedly true that if there be any one principle of law settled, it is that whenever a cause of action, in the language of the law transit in rein adjudicatam,' and the judgment thereupon remains in full force and unreversed, the original cause of action is merged and gone forever. After judgment on the merits a party cannot afterwards litigate the same question in another action, although some argument might have been urged on the first trial that would have led to a different result. Such a judgment is final and conclusive, not only as to matters actually decided, but as to every other matter which the parties might have litigated and decided as incident to and essentially connected with the subject-matter of the litigation as the facts then existed.
"The discovery of new evidence not in the power of the party at the former trial forms no exception to the rule. The doctrine is so just, and so necessary to the peace and good order of society, that we have no desire to either modify it or unreasonably limit its application. But before we apply the rule that no one should be twice vexed for the same cause of action, we ought to be well assured that the cause of action is the same. As remarked by Cowan, J., in discussing the subject of 'Res Adjudicata' (People v. Mercein, 3 Hill (N.Y.) 399: 'If the cause of action be the same, the claim should be held extinguished. Where an entire right has been once litigated and passed on upon its merits, it should not be stirred up again. To allow a second trial in such a case would be against public policy. But it would be likewise unjust to cut off substantial rights, which have not and never could have been tried, for the reason that they did not exist, or were disallowed at the moment for some fleeting cause which has ceased to exist. An estoppel, though admissible in a case precisely the same with that adjudged, has no application to one which is in its own nature ambulatory, and which has ceased to be the same by progression.'
"According to all the authorities it would be necessary in the present case, in order that the judgment in the former action should be a bar to a recovery In this action, that the 'cause of action' in the two *Page 153 should be the same. This proposition defendants do not controvert. Care must be taken also to distinguish betweenidentity of the subject-matter of litigation and identity ofcause of action, — a distinction often overlooked. The subject-matter of litigation may be the same, and yet the causes of action entirely different. Therefore, there is a well-settled rule of law on the subject of res adjudicata that a former adjudication never affects after-acquired rights. A judgment cannot prejudice rights which had not accrued to either party at the time of its rendition."
In the present case the trial court, on the former appeal, sustained a demurrer to the petition. The case was appealed to this court and the judgment was reversed and remanded. An answer was filed controverting some of the material facts alleged in the petition. The order of the court appointing the guardian was introduced in evidence. The waiver of the mother, requesting the appointment of Westlake as guardian, was introduced in evidence. While the subject-matter of the litigation is the same, it presents an entirely different cause of action. There was no judgment at all on the merits of the case on the former appeal. The former appeal, therefore, is not res adjudicata.
It is further contended that the judgment of the trial court should be affirmed because of the failure to serve the order of hearing the petition for sale of real estate upon the relatives, next of kin, and persons having the care and custody of the ward, pursuant to section 1472, C. O. S. 1921. The order of hearing the petition for the sale of the real estate only provided that a copy of said order should be published for three successive weeks. The publication was the only service made of the order. This section was amended in 1910, and at the time the sale was had herein the notice could be served either by publication or by being personally served on the next of kin. The amendment did not become effective until June 17, 1910. The order of sale was made March 4, 1910, the real estate was appraised March 26, 1910, and the sale was confirmed June 13, 1910. The statute in force at the time the sale was made was section 1846, Wilson's Rev. Ann. Stat. of 1903, and is as follows:
"A copy of the order must be personally served on the next of kin of the ward, and on all persons interested in the estate, at least 14 days before hearing of the petition, or must be published at least three successive weeks in a newspaper printed in the county, or if there be none printed in the county, then in such newspaper as may be specified by the court or judge in the order. * * *"
Service of the order of sale was made by publication for three weeks in the Muskogee Times Democrat and in the Sapulpa Light of Sapulpa. In the case of Eaves v. Mullen, 25 Okla. 679,107 P. 439, it was held that the above statute did not authorize the court to require that service be made by both methods.
The judgment of the trial court is reversed, with directions to enter judgment in favor of the defendants.
MASON, C. J., LESTER, V. C. J., and HUNT, CULLISON, SWINDALL, and ANDREWS, JJ., concur. RILEY, J., dissents. CLARK, J., not participating.