I concur in the opinion, but I think the appeal should be dismissed. The guardian may appear and prosecute or defend actions for his ward, but under our code must do so in the name of his ward. Section 369 of the Code of Civil Procedure expressly authorizes administrators and executors to sue as though trustees of an express trust. In some states this same privilege is awarded to guardians, but our code provides (Code Civ. Proc., sec. 373) that a ward shall himself be a party to a suit which shall bind his estate.
It has been held in some jurisdictions, where there is no special statutory provision upon the subject, that a guardian can maintain an action in his own name upon an obligation made by himself as guardian, and also that as to such contracts he may be sued. Such cases also hold that he is the owner of and personally liable on such contracts and only liable to account in reference to them as trustee of his ward. In case of his death, such choses *577in action go to Ms representatives. (Chitwood v. Cromwell, 12 Heisk. 658.)
Whether in the probate court the guardian should appear to object to proposed distribution in his own name as guardian or in the name of his ward was immaterial, but no one can appeal from a judgment except the parties to it, or those in privity with the parties. And even as to parties the record must show that their interests are or may be affected by the judgment.
The subject will be found fully considered in 9 Encyclopedia of Pleading and Practice, 929. (Also, Schouler’s Domestic Relations, sec. 343, note. See, also, Fox v. Minor, 32 Cal. 112; 91 Am. Dec. 566; Wilson v. Wilson, 36 Cal. 451; 95 Am. Dec. 194; Justice v. Ott, 87 Cal. 531; O’Shea v. Wilkinson, 95 Cal. 454; Dixon v. Cordozo, 106 Cal. 506.)
In In re Rose, 66 Cal. 241, this question was not raised. The question there was whether the general guardian or the attorney appointed by the probate judge to represent the minor should appear for the minor in the probate court. Nothing is there said as to the propriety of the appeal taken in the name of the guardian, and the record does not show that any objection was made on that ground. Under such circumstances, we cannot presume that it was intended to overrule other decisions upon tMs question without noticing them.
The guardian was not in privity with his ward, nor is he a person interested. The judgment was not for or against him, but if he can appeal in his own name he is thereby made a party, and the judgment here would be for or against him. This is in violation of the code, which provides that in such cases the ward shall be the party, although he must appear by guardian.
I also concur in the judgment.
Hearing in Bank demed.