I dissent.
At the outset it was contended by respondents that habeas corpus being a collateral attack upon the judgment of the juvenile court, we must test the validity thereof solely by an inspection of the record. Evidence was taken by this court over objection, touching the truth of the findings on jurisdiction, but obviously if the objection be sound the case must be disposed of without regard to such evidence. I think the objection was good. To clarify the issue, however, it may be proper to say that this evidence did show, without contradiction, that Lyyti Moilanen, whom the petition alleged to be the mother of the minor, was at all times confined in the Solano County jail as alleged in the petition; that no citation was issued directed to her, that no notice of any sort was given to her of the pendency of the proceedings, nor opportunity to appear thereat, and that she did not appear.
The petition in the juvenile court proceedings which initiated the same contains in brief the following allegations; That Edwina is 16 years of age and not an inmate of any state institution; that she comes under the provisions of subdivision (k) of section 700 of the Welfare and Institutions Code (the Juvenile Court Law) as being a person in danger of leading an immoral life; that she resides in Solona County; that her mother is Marlene Carroll; that the mother resides in Solano County and is in that county’s jail. Petitioner prays that a time and place for the hearing of the petition be fixed; that Marlene Carroll be cited to appear at said time and place and show cause why the minor should not be adjudged a ward of the court; and that the court at said time inquire into the truth of the matters alleged and make such order as would be meet and proper. The judgment and order of commitment recites that the minor had been regularly brought before the court on April 20, 1951, upon the petition, and that it appeared “to the court that due and legal notice of the hearing of said matter had been given in all respects in the manner required by law to the parties entitled thereto”; that testimony had been taken and that the court found that the minor was born May 10, 1934; that she came within the provisions of subdivision (k), section 700, of the Welfare and Institutions Code, and that her welfare required that she be made a ward of the juvenile court. It is expressly found that all of the statements of fact contained in the petition are true, thus finding that the minor resides in Solano County; that Marlene Carroll (stipulated herein to be the same person *846as Lyyti Moilanen) is her mother; that she also resides in that county, and that her address is the Solano County jail. It is decreed that the minor be made a ward of the court and that she be placed on probation under the care of the probation officer of that county “until she shall have reached the age of 21 years or be discharged by the court. ” It is further ordered that she be committed to the Solano County juvenile hall until further order and that, likewise until further order, she be not permitted to have visitors without a written order of the court.
At the hearing, by stipulation of both sides and consent of the court, the petition for the writ was treated as a traverse to the return.
Proceedings to declare a person a ward of the juvenile court are governed by subdivision 2, part 1, chapter 2, article 7, of the Welfare and Institutions Code of this state. By section 720 it is declared, as to the manner of invoking the court’s jurisdiction, that a person subject to the court’s jurisdiction may be brought before the court by a petition praying that such person be declared the court’s ward and so dealt with. Section 721 provides that the petition shall show that there is within the county, or residing therein, such person, and that the petition shall contain a statement of the facts relied upon and the names and residences of the parents or guardian of the person involved, if known to the petitioner. The petition here met these requirements and hence properly invoked the jurisdiction of the juvenile court. Section 726 requires that citation shall issue, directing such parent or guardian residing within the county to appear at a time and place theretofore fixed for hearing the petition and that service of such citation shall be made at least 24 hours before the hearing time so set. With regard to service of such citation, however, the section provides that it may be waived “by a voluntary appearance entered in the minutes” Or “by a written waiver of service of citation filed with the clerk” prior to the hearing. It has been held that compliance with these provisions, where the facts are as alleged in the petition here involved, is jurisdictional and that failure to comply, therewith makes void any judgment which may follow.
In a' habeas corpus proceeding and where the return shows detention by virtue of the judgment of a court of general jurisdiction, the attack upon the judgment as constituting such justification for detention is a collateral attack and we must indulge in every presumption “in favor of the validity of the judgment or order of a court of general jurisdiction, and *847any condition of facts consistent with its validity and not affirmatively contradicted by the judgment roll will be presumed to have existed. . . . Where the record is silent, it will be presumed that process and pleadings were properly served and that due proof of such service was presented to the court. . . . Similarly, notice, or facts rendering it unnecessary, are presumed unless the record shows the contrary, and when the court may shorten time or dispense with notice, it will be presumed that the court did so if the order is silent upon, the point. . . . Under this general rule it will be presumed, when necessary, that the parties consented to the court’s action or waived objection thereto. For example, although there is no rendition of judgment when findings are required unless findings have been made or waived . . . , it has been held on a judgment roll appeal, where the court was limited to matters appearing on the face of the judgment roll, that a waiver of findings would be presumed unless the record affirmatively showed the contrary.” (Italics added.) (Phelan v. Superior Court, 35 Cal.2d 363, 373-374 [217 P.2d 951].)
An application of the foregoing rules necessitates a holding that the record here shows jurisdiction in the Solano County Juvenile Court to make the minor Edwina Moilanen a ward of said court. All of this, of course, is not to say that the court actually had jurisdiction. But, in view of the record and of the presumptions which must be indulged, the court’s action cannot be successfully attacked on habeas corpus. The remedy is by some form of direct attack, as by motion to vacate or appeal. The best that can be said for petitioner, the record only considered, is that it is silent upon the matter of how in one of the various ways possible, as by service of citation, or waiver thereof or appearance at the hearing, jurisdiction to proceed was obtained. But on these matters the recitals of the court that due notice had been given to all persons entitled thereto and that the matter had been regularly heard by the court necessitate a holding that the court had jurisdiction to proceed and to -make the order which it did make, declaring the minor a ward of the court. (In re Spiers, 15 Cal.App.2d 487, 492-493 [59 P.2d 838].) In that case the court said:
“. . . It was stipulated in open court that the petition should be considered as a traverse of the return, which of course leaves undetermined whether the mother of the minor was or was not present in court. Nothing else appearing, the recital of the court that due notice had been given to all persons *848entitled thereto would necessitate a holding that citation had been issued and properly served. ’ ’
See, also, In re Orosco, 92 Cal.App.2d 352 [207 P.2d 656], and People ex rel. Pollock v. Bogart, 58 Cal.App.2d 831 [138 P.2d 360].
Concerning the contention advanced by petitioner that the court had no jurisdiction to proceed because the minor had been brought into the county by force and without warrant of law, I think that, assuming that such was done, the effect upon jurisdiction could not be determined in this proceeding. (Matter of Maginnis, 162 Cal. 200, 205-206 [121 P. 723].) The court there said:
“. . . The decisions in this court, so far as they go, are to the contrary. In De la Montanya v. De la Montanya, 112 Cal. 131, [44 P. 354], Temple, J., delivering the opinion of the court, says: ‘I do not doubt that the mere presence of infants within the jurisdiction is sufficient to confer jurisdiction, although they may be residents of another state. ’
“But it is not necessary, in the ease at bar, to go into this question. The petition of Fairweather, initiating the proceedings in the juvenile court, alleges that the minor is residing in the city and county of San Francisco, and the order committing the child to the custody of the Children’s Agency finds, as a fact, that this allegation is true. The petition, therefore, presented to the juvenile court a case which, under any view, was within its jurisdiction, and the court had power to decide whether the averments of jurisdictional facts were true. Its decision on the facts, however erroneous, cannot be reviewed on habeas corpus. The sufficiency of the evidence to sustain the finding ‘is a matter into which we cannot inquire upon this writ. Under the writ, the court can only inquire into the jurisdiction to find, not into the correctness of the findings. . . .’ [Cases cited.]”
One more matter should be discussed. The statute plainly requires that even though the court, in the exercise of its jurisdiction invoked by the petition, has regularly proceeded within that jurisdiction to make the subject minor a ward of the court, nevertheless where, as found by the court here, there is a parent or guardian resident within the county, the court cannot take the actual custody of the minor from such parent or guardian without finding that one or more of the statutory conditions, set forth in section 739 of the code, justify such change in custody.
It has been held that the making of such a finding is a *849jurisdictional requisite and that an order made without that act having been performed, which order takes the custody from the parent or guardian under such circumstances as are presented by the record here, renders the order to that extent void. The result of that would be that if that finding was not made the detention of Edwina Moilanen by the probation officer would be illegal and she would have to be discharged from that custody. What does the record show? First, the order of commitment contains no such finding, expressly, nor do I think that any of the language thereof can be said to impliedly embrace such finding. The recital that the minor was regularly brought before the court refers only to the main proceeding looking toward making her a ward of the court. The recital as to notice being given the mother goes no further than the matter to which it expressly refers. The finding that the minor comes within the provisions of subdivision (k) of section 700 of the Welfare and Institutions Code is of no aid and the same must be said of the finding that the welfare of the minor required that she be made a ward. The finding that the allegations of the petition are true likewise does not reach the question here. Nor does the order, itself, committing the ward to the custody of the probation officer, affect the inquiry, for if no such finding was made in fact, and the record should so show either affirmatively or presumptively, then the order itself is no order at all. But the result of all this is simply to declare that the record is silent upon the issue of whether or not such finding was in fact made and under such circumstances the presumption comes to the aid of the order and the order is valid, as against the attack here made.
I have no quarrel with that part of the majority opinion which asserts that in the particulars therein mentioned the traditional scope of the writ of habeas corpus has been extended. However, I think that the cases referred to do not warrant what seems to me to be a new and very extensive broadening of the scope of the writ. If the writ can be used as it is here being used, then I think that mischievous results will follow. What has been done is to declare that, notwithstanding the trial court has passed upon the facts touching its jurisdiction to proceed and has declared in the record that those jurisdictional facts exist, the truth of the findings may be reviewed upon habeas corpus and that in doing so evidence may be taken contrary to the findings and a new determination be made upon habeas corpus as to whether or not the findings
*850of the court were wrong in fact. If this can be done in this collateral proceeding, then I anticipate that such indirect attacks will become common. No effective limitations of time will be available and the judgments of courts will be made insecure.
I would discharge the writ.
Respondent’s petition for a hearing by the Supreme Court was denied July 19, 1951. Gibson, C. J., and Edmonds, J., voted for a hearing.