Opinion
Department One
Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco, vacating an order appointing a guardian ad litem, and from an order dismissing the petition filed by said guardian ad litem, for the revocation of the probate of the will of Anna M. Hathaway, deceased. Charles W. Slack, Judge.
COUNSEL:
William T. Baggett, and Walter H. Linforth, for Appellant.
E. J. Pringle, for Respondent.
OPINION
THE COURT
[43 P. 755] Motion to dismiss the appeal. The last will and testament of Anna M. Hathaway was admitted to probate in the superior court of the city and county of San Francisco in January, 1895, and thereafter, viz., June 21, 1895, upon his application therefor, Charles W. Barrow was appointed by one of the judges of said court guardian ad litem of Harriet Coleman Barrow, an incompetent person, claiming to be the heir at law of the deceased; and on the same day a petition was filed in said court in her name by her said guardian for the revocation of the probate of said will. Upon notice therefor to said guardian ad litem, a motion was made to said court to vacate and set aside the order appointing him as said guardian ad litem, and to strike out and dismiss the petition filed by him for a revocation of the probate of said will. This motion was heard upon affidavits filed on behalf of the respective parties, and on the 7th of September the court made an order granting the motion. From this order the guardian ad litem appealed to this court, and a motion is now made on behalf of the executor to dismiss the appeal upon the ground that the order is not appealable.
The provision in section 963, subdivision 3, of the Code of Civil Procedure, authorizing an appeal "from a judgment or order,. .. . revoking letters of guardianship," refers to the guardianship of the person or estate of a minor, or of an insane or incompetent person, for which provision is made in chapter 14 of title XI, part III, of the Code of Civil Procedure, and does not include an order appointing a guardian ad litem to represent the infant or incompetent person, authorized by section 372. No letters of guardianship are issued to a guardian ad litem, but his authority is evidenced by the entry in the minutes of the court appointing him. He is appointed by the court in which the action is pending in each case; and his removal, as well as his appointment, is under the control of the court in which the case is pending. If an appeal could be taken from the order removing him, it could with equal reason be taken from the order appointing him, and the very purpose of the appointment would be frustrated.
Neither is that portion of the order striking out and dismissing the petition for the revocation of the probate the subject of an appeal. This court has appellate jurisdiction in such probate matters only as may be provided by law, and while section 963, subdivision 3, of the Code of Civil Procedure, authorizes an appeal from an order revoking the probate of a will, it does not authorize an appeal from an order denying the revocation of the probate of a will, or from an order dismissing a petition therefor. (Estate of Sbarboro , 70 Cal. 147. See, also, Estate of Montgomery , 55 Cal. 210; Carpenter v. Superior Court , 75 Cal. 596; Estate of Ohm , 82 Cal. 160.)
The motion to dismiss the appeal is granted.