BELMORE BROWNE, as Guardian, etc., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents, 16 Cal. 2d 593

GIBSON, C. J. This is a petition for a writ of prohibition, to restrain respondent superior court from hearing and deciding an application for a writ of habeas corpus sought on behalf of an incompetent person. The petition shows that Mrs. Ella H. Browne, an elderly lad}'- nearly ninety years of age, was adjudged incompetent in a proceeding in the Superior Court of Santa Barbara County. On April 23, 3934, her son, Belmore Browne, petitioner herein, was appointed guardian of her person and estate. He qualified as such and entered upon his duties. Mrs. Browne remained in Santa Barbara until October, 1936.

At that time, upon the advice of physicians, including psychiatrists, she was sent to San Francisco and placed in the Greer Home, an institution offering satisfactory care and attention. Thereafter J. W. Browne, another son, in various communications to his mother and to the guardian, urged that she come back to Santa Barbara. Her attending physician opposed the move as dangerous. On November 22, 1937, the guardian filed a petition in the Santa Barbara Superior Court seeking instructions, in which all of the foregoing facts were set forth. The court held a hearing at which J. W.

Browne failed to appear, and entered its order instructing the guardian that the ward should remain in San Francisco at the nursing home, and that her attending physician should examine and if necessary censor her incoming mail for the purpose of avoiding undue excitement. J. W. Browne then moved to reopen the case, and the court did so. At this hearing the parties, including J. W. Browne, stipulated that the matter be submitted upon the testimony of a psychiatrist appointed by the court. This psychiatrist testified that Mrs.

Browne was sane, but mentally childish and incapable of making practical judgments alone; that her age, and her physical and mental condition made it dangerous to move her to Santa Barbara, for the reason that the excitement incident thereto might bring on a fatal heart attack; that the Greer Home furnished good service and environment well adapted to her needs, and that there was no nursing home in Santa Barbara comparable in service and price; that her desire to return to Santa Barbara was merely a normal result of her age and condition, but that it was not safe for her to do so.

On the basis of this evidence the court reaffirmed its original order instructing the guardian to keep Mrs. Browne in San Francisco. No appeal was taken from either order. On April 7, 1939, Harold V. Daley, the attorney who had represented J. W. Browne in the earlier proceedings, made an application in the San Francisco Superior Court for a writ of habeas corpus on behalf of Mrs. Browne.

The application alleged that he was her attorney and was requested by her to institute the proceeding to release her from restraint; that she was being unlawfully confined in the Greer Home by her guardian and the superintendent and doctor; that her confinement was unlawful for the reason that she was not insane or mentally unsound; that conditions and associations in Santa Barbara were more conducive to her happiness; that her entreaties to her guardian to be returned there had been disregarded, leaving her homesick and unhappy; that her estate was sufficient to provide such institutional care as might be proper upon her return to Santa Barbara; and (on information and belief) that she could make the journey without danger.

It was further alleged that because of the censorship of her mail and visitors, her attornej'- was unable to discuss her case freely and for this reason presented the application on her behalf without verification by her. The prayer was “that said Ella H. Browne be relieved of and from such detention, confinement and restraint and for such other and further relief as she ought to have”. The writ issued, and a demurrer and answer were filed, denying most of the material allegations and raising mainly the issues of jurisdiction and res judicata.

The demurrer was overruled and the court set the proceeding in habeas corpus for trial. Thereupon petitioner sought a writ of prohibition in this court, and an alternative writ issued. A preliminary objection made by respondents is that prohibition can only issue to an inferior tribunal, and that in its jurisdiction to issue habeas corpus the superior court is on the same plane as an appellate court. This argument is answered by cases recognizing the power to restrain unauthorized issuance of habeas corpus. (France v. Superior Court, 201 Cal. 122 [255 Pac. 815, 52 A. L. R. 869]; Bartlett v.

Superior Court, 108 Cal. App. 755 [292 Pac. 545] ; 29 C. J., 116; 12 R. C. L. 1218.) Under these authorities there can be no doubt of our power and duty to grant the writ of prohibition herein if the respondent superior court is acting in excess of its jurisdiction. The chief contention of petitioner is that the Santa Barbara court has exclusive jurisdiction over the custody of the incompetent, and that the San Francisco court has no power to interfere with it.

This is the familiar proposition that where several courts have concurrent jurisdiction over a certain type of proceeding, the first one to assume and exercise such jurisdiction in a particular case acquires an exclusive jurisdiction. Thereafter another court, though it might originally have taken jurisdiction, is wholly without power to interfere, and may be restrained by prohibition. (See Gorman v. Superior Court, 23 Cal.

App. (2d) 173 [72 Pac. (2d) 774].) The rule is generally invoked where a proceeding is still pending; when it is completed and judgment has become final, jurisdiction has been exhausted and the rule has no application. In applying this doctrine to a guardianship proceeding, we must keep in mind at least two distinct stages in the court proceedings. First there is the petition brought to establish the incompetency of the ward and to obtain the appointment of a guardian.

When this matter is concluded, the second stage is reached, wherein the guardian undertakes the duties of providing for the ward and administering his affairs. As to the first stage, the determination of incompetency and resulting appointment of a guardian, the issues are no longer pending. A final adjudication has been made. In the present case the jurisdiction of the Santa Barbara court over this subject matter has been fully exercised, and for all normal purposes this adjudication is conclusive.

If the question of incompetency may properly be raised again, there is no longer any objection that the matter is pending within the jurisdiction of the Santa Barbara court. As to the second stage, however, the matter is not concluded until the discharge of the guardian. In carrying out his duties of administration he acts under the authority and supervision of the court which appointed him, must render accountings, may petition for instructions, and is subject to liability or removal for misconduct.

The jurisdiction of the court in this respect is a continuing one, and though no motion, petition or other such incidental proceeding may be pending at any particular time, the court still has jurisdiction over the guardianship. No other court, we believe, has power to interfere with that continuing control over the guardian; no other court could receive and approve his accounting, or instruct him as to his duties. The San Francisco Superior Court cannot, in this habeas corpus proceeding, enter into any consideration of the propriety of the medical or other care of Mrs.

Browne, her residence, the extent of supervision over her visitors, mail or other personal activities, or any other matters connected with her guardianship. The allegation that she desires to return to Santa Barbara has no legal significance under the facts recited; no more significance, indeed, than her personal preference as to doctors, drugs or treatment. Under the law her guardian must choose her place of residence (Prob. Code, sec. 1500), and the Santa Barbara court has fully considered all matters pertaining thereto.

These are all wholly within the jurisdiction of the Santa Barbara court, and are beyond the scope of any proceeding in habeas corpus. Ordinarily, the court in a habeas corpus proceeding of this kind can have but one issue to determine: Whether the applicant is being unlawfully deprived of liberty. If she is competent, she should be freed from all custody and may choose her own residence and mode of life. If she is incompetent, she is properly in the custody of her guardian and is not entitled to a discharge. It remains now to test the present proceeding by these principles.

The application for the writ of habeas corpus contains allegations of illegal restraint of a competent person, which, standing alone, would doubtless give jurisdiction to the court to determine her competency and right to release from restraint. But there are statements in the pleadings and briefs which throw an entirely different light upon the proceeding. The petition for prohibition alleges that by the application for habeas corpus “it is sought to free said ward from the custody of her guardian”.

In the answer to the petition, filed by the attorneys who obtained the writ of habeas corpus, they “Deny that by the application of Ella H. Browne for writ of habeas corpus it is sought to free said Ella H. Browne from the custody of her guardian.” And in one of their briefs, said counsel state: “Her petition for habeas corpus in the San Francisco Superior Court seeks her removal to Santa Barbara.” Because of this confusion, counsel at the oral argument were questioned as to the real object of the application.

At that time counsel for the applicant denied any intention of seeking the release of the ward from custody or having the guardian removed, and stated that the purpose was, first, “to enable this ward to have a certain measure of freedom, using that term in the sense of a desire on her part to be permitted to return to Santa Barbara”; second, “to remedy unreasonable restraint upon her personal liberties with respect to the improper, as we contend, censorship of her mail and also the denial to her of the right to have visitors come to her at the Greer Home, where she was in effect kept incommunicado by her guardian”.

These statements constitute an abandonment of the only proper ground upon which the writ could issue. The action of the respondent court in issuing its writ of habeas corpus was undoubtedly based upon a misconception of the object of counsel who applied for it. The subsequent disclosures show that the matters sought to be determined, namely, the residence and method of treatment of the ward, are exclusively within the jurisdiction of the Santa Barbara court, and outside the scope of the writ of habeas corpus.

If these facts had been brought to its attention, the lower court might properly have dismissed the proceeding. It is equally proper for this court to grant prohibition to restrain it. Counsel for the applicant, it is true, makes some attempt to justify the use of the writ of habeas corpus to remedy what he describes as the “unreasonable restraint upon her personal liberties”, consisting of the designation of San Francisco as her residence, and the limitations placed upon her right to receive mail and visitors.

He has furnished us with no case in point, but relies on a few general statements to the effect that unreasonable interference with the personal .liberty or welfare of a person may be inquired into on habeas corpus, notwithstanding the fact that the person is in the custody of a guardian. The case of State ex rel. Raymond v. Lawrence, 86 Minn. 310 [90 N. W. 769, 58 L. R. A. 931], offers a typical illustration of the meaning of these statements. The court there declared that “The welfare of the ward is the chief matter to be considered—not the wishes of the relatives, nor the convenience of the guardian. . . .

The guardian does not have unlimited power over the ward, and cannot change its temporary or permanent residence to its detriment ...” Further on, the court said: “Where an attempt is made by a guardian or anybody else to exercise any restraint over the person of anyone within this state, the writ of habeas corpus, or any other appropriate remedy, will always be effectual to inquire into the propriety of any such attempted restraint, and upon such inquiry the proper court can make such an order or judgment as the particular case may require. ’ ’ However, a study of the opinion reveals that the guardians were actuated by personal hostility to the relator, daughter of the ward, and gave “scant consideration” to the welfare of the ward.

Notwithstanding this misconduct, the court held that, until removed by the probate court, the guardians could care for and control the ward in any reasonable manner. “They may designate the persons in whose immediate charge she shall be,—such as the attending physician and nurses,—and may insist upon the observance of reasonable rules and regulations conducive to her health and comfort.” Accordingly, the court declined to approve an attempt by the lower court commissioner to make a change in her custody and control, but reaffirmed the rule that these matters were within the sound discretion of the guardians.

Such decisions are entirely reasonable when considered in connection with their particular facts. We may assume that if the guardian of the incompetent herein, without instruction or authorization from the court, took the ward away from her home to an unsatisfactory place of residence, or unjustifiably confined or imprisoned her so as to deny her the pleasures of visiting her family or friends, or deprived her of the opportunity to receive medical care by preventing her from seeing a physician, these restraints might, in the absence of another adequate remedy, be the subject of inquiry on habeas corpus.

The guardian has the custody and care of the ward, but the ward is not his prisoner. He may limit her activities in a reasonable manner, for her own benefit, but cannot, without good reason, deny her such freedom as is essential to her welfare. All this, however, has no bearing on the instant case. The guardian is not arbitrarily confining or limiting the freedom of the ward upon his own initiative.

He is acting under the instructions of the court having jurisdiction of the guardianship, and the court gave those instructions after the fullest possible hearing, and upon ample and practically conclusive testimony that the particular course of conduct prescribed was for the best interests of the ward. The court may have been wrong then, and it may be wrong now. For the error it may have committed then, appellate review was possible. For the error it may be commiting now, an application to that court, which has continuing jurisdiction of the guardianship, is still possible.

Evidence as to the condition, the needs and the desires of the ward may be presented to that court on her behalf, and the fairness of the hearing or the correctness of the decision may be reviewed on appeal. But in the present circumstances there is no possible ground for habeas corpus. There is no illegal restraint whatever. Everything has been done in accordance with the lawful orders of a court with jurisdiction to make them, upon evidence which fully supports the orders.

If the guardian were to permit what the application demands, he would be acting in violation of the orders of the Santa Barbara court, and would be answerable to that court for his misconduct. The only other contention that requires consideration is that the writ may issue to permit the incompetent to consult with her attorney, a right now alleged to be denied her. There are, of course, authorities which hold that the right of an accused or a prisoner to consult his counsel may be enforced on habeas corpus (see In re Rider, 50 Cal.

App. 797 [195 Pac. 965]), but we are unable to see any relevancy in those decisions. The present application for habeas corpus was filed by Harold V. Daley, who was attorney for the brother of the guardian, but who never, as far as the record shows, represented the ward. However, even granting his authority, his right to do so has never been denied. The Santa Barbara court, which, as we have seen, is the only court having jurisdiction to consider the matters raised in the present proceeding, has never refused to hear an application on behalf of the ward, by Mr. Daley or any other attorney.

The proper place to enforce his alleged right to consult the ward is, in the first instance, the Santa Barbara court. But the record fails to show any attempt to seek relief there. On the contrary, it was expressly admitted at the oral argument that this was not done. We cannot assume that the Santa Barbara court will deny a request which has never been made. Let a peremptory writ of prohibition issue restraining respondent superior court from trial or determination of the issues raised by the application for habeas corpus. Curtis, J., Edmonds, J., and Moore, J., pro tem., concurred.