In the petition for rehearing it was urged that the recital in the order settling the final account of the guardian, that "proof was made to the satisfaction of the court that notice of said settlement had been given as required *Page 460 by law, and as ordered by the court," is, upon this inquiry, which in effect is collateral, conclusive evidence that the representative of the deceased ward's estate had, in some manner, received due and legal notice of the time and place of the hearing of the account; that it conclusively established jurisdiction; and that we cannot look into the record to ascertain what notice was in fact given to him, or receive proof of other facts outside the record to show the lack of jurisdiction. The rehearing was granted chiefly for the purpose of re-examining this point. Upon further consideration we are satisfied that the proposition is untenable.
The proper solution of the question depends upon the applicability of section 1634 of the Code of Civil Procedure to the proceedings for the settlement of the final account of a guardian. That it does apply thereto has not been disputed by either party. Section 1789 of the Code of Civil Procedure provides that the proceedings upon the settlement of the account of a guardian, and the notices required thereof, are the same as those required upon the settlement of the accounts of an executor or administrator. Section 1634 of the Code of Civil Procedure provides that if the account filed by an administrator or executor be for a final settlement of the estate, and a petition for final distribution of the estate is filed therewith, notice of the time and place of the hearing thereof must be posted or published for at least ten days prior to the day fixed for said hearing. No other provision is made specifically relating to a final account. It has been, so far as we are advised, the universal custom throughout the state to treat this provision as applicable to a guardian's final account and to require ten days' notice thereof. The final account of a guardian is in many respects the counterpart of the final account and petition for distribution of an executor or administrator. In the latter the balance due is determined and ordered paid over to the persons found to be the heirs, legatees, or creditors. In the former the balance is ascertained and ordered paid over and delivered to the ward, if living, or to his representative, if he is dead. (Code Civ. Proc., sec. 1754) We think it is reasonable to conclude that the legislature deemed the two proceedings to be analogous and intended that the same procedure should apply to both, so far as the notice to be given is concerned. *Page 461
The court could have acquired jurisdiction of the administrator of the ward's estate in but three ways: firstly, by his appearance at or before the hearing, by which act he would have submitted himself to its jurisdiction; secondly, by the issuance of a citation to him and its personal service on him; thirdly, by the constructive service of notice upon him, by posting or publishing the same as required by law for ten days before the day set for the hearing. The latter notice is recited in the record, but there is nothing whatever in the record to indicate that any order was made by the court, or that there was any citation issued, or any appearance by or for the administrator. The proofs which constitute a part of the record show that the recital regarding the posting of notice was true. With respect to the order of the court, referred to in the recital, the record is silent. The law, however, does not provide for any order of court, except in the contingency that at the time of the hearing the court, or a judge thereof, deems the notice given by posting insufficient (Code Civ. Proc., sec. 1633), in which case a further notice may be ordered. This would necessarily require a continuance of the hearing to another day. The record shows affirmatively that there was no continuance, thus demonstrating that there was no order for any further notice, or that, if there was, no such notice could have been given, which fact would of itself be fatal to the existence of jurisdiction. With regard to the possible fact of an appearance by or for the administrator, it may be that if the record had been silent concerning any sort of notice, the usual presumptions in favor of the validity of the proceedings of a court of general jurisdiction would prevail, and such appearance would, if necessary, be conclusively presumed. But on that point the rule laid down in the leading case of Hahn v. Kelly, 34 Cal. 407, that "when the record states what was done, it will not be presumed that something different was done," applies. The record here states that the jurisdiction was acquired by the posting of notices, which is shown both by the recital and by the proofs on file, and it will not be presumed that it was acquired in some other way, as by an appearance. If service of notice in the manner recited was legally possible, it will be presumed that it was made, although the proof on file may be defective. In that event, it would be presumed that proof was made by *Page 462 parol, or that the corrected proof had been mislaid. (SacramentoBank v. Montgomery, 146 Cal. 751, 752, [81 P. 138].) The validity of the order, therefore, depends on the question whether or not, under the circumstances appearing outside the actual record of the proceedings, it was legally possible that the notice could have been given to the legal representative of the ward for ten days before the hearing.
Upon the death of the ward the law, as shown in the original opinion, to which we still adhere, requires the settlement to be made with the legal representative, and the constructive notice of ten days must have been operative upon that representative for the full period of ten days, and that in his representative capacity, to make it effective at all. For the purpose of showing that jurisdiction could not have been acquired in the manner shown by the record, evidence is admissible to prove any fact the existence or non-existence of which is not conclusively established by the record or its recitals. Thus, if a judgment against a corporation recites due service of process upon the corporation, or the appearance for it by some authorized person, it may be set aside upon proof that it had been dissolved, and had no legal existence for any purpose at the time the action was begun and until the rendition of the judgment. So, also, if a judgment against a natural person recites due service of process on him, his heirs or legal representatives may show that such service was impossible, and that the judgment was void, by proof that he was dead before the action was begun.
In like manner the giving of an effective notice in the manner here recited is shown to be impossible, and the order is accordingly avoided, by proof of the fact that the legal representative of the ward was not in legal existence to receive it during a necessary part of the ten days for which it was running; that is, that he was not appointed until March 20, 1899, which was only seven days prior to the day upon which the order was made. Neither the record, nor the recital of the giving of the notice, nor the presumptions in favor of the jurisdiction of the court, are conclusive of the fact of the existence of the administrator as such, during the whole or any part of the ten days, any more than they would be conclusive of the existence of the corporation, or of the fact that the defendant was alive, in the instances above referred to. *Page 463 The actual, effective time of the notice to the administrator was, therefore, only seven days, whereas the law requires ten days to constitute legal service. Jurisdiction to hear the settlement of the account was therefore wanting, and the order was void.
The judgment and order are reversed.
Angellotti, J., Sloss, J., Henshaw, J., McFarland, J., and Lorigan, J., concurred.
Beatty, C.J., concurred in the judgment.
The following is the opinion rendered in Department One, May 24, 1906, referred to in the foregoing opinion: —