
    [No. 12305.
    In Bank.
    October 27, 1888.]
    ABEL F. CARPENTER et al., Petitioners, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent.
    Certiorari—Judgment on Pleading. — When a demurrer to a petition in- the supreme court for a writ of review has been determined in favor of the petitioner, and the answer raises only the same question which was passed upon in considering the demurrer, it presents no material fact to be tried, and the petitioner is entitled to judgment upon the pleadings in his favor.
    Writ of review to the Superior Court of San Joaquin County.
    The writ was sued out to annul an order setting aside the verdict of the jury and the judgment rendered thereupon revoking the probate of the will of Charles W. Carpenter, deceased, which order was made upon the ground that no guardian ad litem had been appointed to appear and defend for the minor heirs in the matter of the contest. The petition for the writ of review showed that an attorney had been appointed to represent the minor heirs in all proceedings in said court, and that he had filed an answer for them in the proceeding to revoke the probate of the will. A demurrer was interposed to the petition, the decision upon which is reported in 75 Cal. 596. The further facts are stated in the opinion of the court.
    
      Sawyer & Burnett, for Petitioners.
    
      S. D. Woods, and Carter & Smith, for Respondent.
   Works, J.

The questions of law arising in this case were fully presented by a demurrer to the petition, and determined in favor of the petitioners. The respondent has filed an answer, and the petitioners move for judgment on the pleadings, on the ground that “it appears from the pleadings that petitioners are entitled to the relief asked for in the petition.”

The answer is, that the order mentioned in the petition, vacating and setting aside the verdict and judgment mentioned and set forth in said petition, was made, given, and entered, “because the minors described in said petition were not and had not been represented in the matter of the contest to revoke the probate of the will of said C. W. Carpenter, deceased, in that no guardian ad litem, has or had been appointed to appear for and defend for said minors in the matter of said contest, and that by reason of the said failure to appoint said guardian ad litem for said minors, the said verdict and judgment was irregular and void.”

The petition states the facts showing how and by whom the minors appeared and were represented. This petition was held to show that the minors were so represented that the judgment rendered was binding upon them, and the order vacating it was not effective. It was expressly held that the appointment of a guardian ad litem was unnecessary to the validity of the judgment. This being true, the answer presents no material fact to be tried, and the motion for judgment on the pleadings in favor of the petitioners should be allowed.

It is so ordered.

McFarland, J., Searls, 0. X, Sharpstein, X, and Thornton, J., concurred.  