I dissent as I find no justification for declaring, as does the majority opinion, that “the San Francisco court has no jurisdiction to appoint a guardian of the persons of Ellen C. Greene and Luther M. Greene. ’ ’ Such jurisdiction is clearly conferred upon that court by the provisions of section 1440 of the Probate Code, and every case which has dealt with the subject has held that such jurisdiction is not affected by the existence of a prior decree in a divorce action awarding custody of the minors. (Guardianship of Phillips, 60 Cal.App.2d 832 [141 P.2d 773]; Guardianship of Burket, 58 Cal.App.2d 726 [137 P.2d 475]; In re Guardianship of Kerr, 29 Cal.App.2d 439 [85 P.2d 145]; Collins v. Superior Court, 52 Cal.App. 579 [199 P. 352].) I therefore cannot agree with the conclusion reached in the majority opinion or join in the disapproval of the foregoing authorities.
Furthermore, in 1945, this court unanimously affirmed an order appointing a guardian of the person of a minor despite the existence in another county of a prior divorce decree awarding custody of said minor. (Guardianship of Phillips, 27 Cal.2d 384 [164 P.2d 481].) In that case, some of the authorities above mentioned were cited with approval; and if the majority now feel that said authorities should be disapproved, it necessarily follows that the last cited case should be overruled.
The fundamental fallacy underlying the reasoning of the majority opinion is found in its treatment of a divorce decree awarding to a parent the custody of a minor as the precise equivalent of a decree appointing a guardian of the person of a minor in a guardianship proceeding. It seems clear that these decrees should not be so treated. While it is true that both proceedings deal generally with the right to custody, they are quite different in several particulars, only the most important of which need be mentioned. A divorce decree awarding custody of a minor is one entered in an action in which only the parents may appear as parties. On the other hand, a decree appointing a guardian of the person is one entered in *314a proceeding in which any interested person may appear, and which proceeding may in fact he instituted by the minor himself, if 14 years of age, or by any “relative or other person on behalf of the minor.” (Prob. Code, §1440.) Notice of such proceeding must be given “to such relatives of the minor residing in the state as the court or judge deems proper,” and notice must be given to the parents in the absence of proof “that their addresses are unknown, or that, for other reason, such notice cannot be given.” (Prob. Code, § 1441.) Thus, the parents may or may not appear in such proceeding, and if they do appear, an adversary proceeding may develop in which some third person may be appointed guardian rather than the parent or parents of the minor. It therefore appears that the guardianship proceeding is the broader proceeding in which all interested persons may be heard in support of their conflicting claims; and it further appears from the authorities above cited that section 138 of the Civil Code is merely a convenient and. temporary substitute, permitting the award of custody in a divorce action, until such time as it may be determined in a guardianship proceeding that it is “necessary or convenient” to appoint a guardian. (Prob. Code, § 1440.)
It is no answer here to point out that no person other than the parents has appeared, up to the present time, in the guardianship proceeding. The sections relating to the guardianship do not require the filing of an answer, or of a second petition, in order to enable the probate court to hear conflicting claims and to award custody to some person other than a parent who may be the petitioner. If the probate court here is given the opportunity to hear the guardianship proceeding on the merits, it might be made to appear at that time that neither parent should be appointed as guardian, and that some third person should be so appointed. That question, however, is one to be determined by the probate court in the exercise of the jurisdiction conferred upon it by section 1440 of the Probate Code.
The ■ holding of the majority opinion presumably would deny jurisdiction over a guardianship proceeding to any court, other than the court in which the divorce decree was entered, at least during the time that both parents are still living. Thus, if a divorce decree awarding custody of a minor had been granted to one of the minor’s parents in the superior court in Del Norte County, and thereafter all interested persons had established their domicile in San Diego County and *315had lived there for many years preceding the final abandonment of the minor by his parents in the latter county, then neither the superior court in San Diego County, nor any court of this state other than the superior court of Del Norte County, would have jurisdiction to entertain a guardianship proceeding which might be instituted by the minor or some other person during the lifetime of the parents. It seems clear that the superior court of San Diego County should be held to have jurisdiction under such circumstances; and, in my opinion, it seems equally clear that the Superior Court of the City and County of San Francisco should be held to have jurisdiction here. In fact, the court located in the county “in which a minor resides or is temporarily domiciled” appears to be the only court which has jurisdiction to appoint a guardian. (Prob. Code, § 1440; 13 Cal. Jur. 147.)
If the writ should be denied, as I believe it should be, and all of the facts are presented on the hearing of the guardianship proceeding on the merits, then, as pointed out in the Guardianship of Phillips, supra, 60 Cal.App.2d 832, at page 836, “. . . it will be appropriate for the superior court in San Francisco, in the exercise of its jurisdiction, to determine among other things whether under all the circumstances ‘it appears necessary or convenient’ to appoint a guardian of the person of said minor. (Prob. Code, section 1440.) ”
In my opinion the petition for a writ of prohibition should be denied.
Shenk, J., concurred.
Respondent’s petition for a rehearing was denied June 18, 1951. Shenk, J., and Spence, J., voted for a rehearing.