This was an application by the father of Annie Murphy, a minor, to be appointed her guardian. Mary Murphy, the mother of the child, contested the application.

It appeared that in an action for divorce, pending between the petitioner and contestant, in department 8 of the superior court of San Francisco, the custody of the child had been awarded to the contestant.

Counsel for contestant claimed that the court granting the divorce, and awarding the custody of the child to one of the parties, retained full and exclusive control over the subject matter, and, besides citing numerous authorities, quoted section 138 of the Civil Code of California, which is as follows:

“In an action for a divorce, the court may, before or after judgment, give such directions for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.”

Petitioner’s counsel proceeded under sections 1747 et seq., Code of Civil Procedure, relating to the subject of guardian and ward.

They maintained that the action of the court in the divorce proceeding is merely ancillary to the main purpose of the suit—the procurement of a divorce; and that the point in controversy in that proceeding was not as to who should have the custody of the minor—that she was not a party thereto—but merely as to whether one of the spouses was entitled to a divorce, and that therefore the order of department 8 was not conclusive as to the custody of the child, and does not debar the court having the control of minors from exercising its jurisdiction. It may be added that, by rule of the superior court of San Francisco (consisting of twelve departments), all probate matters and those relating to the guardianship of minors are assigned to department No. 9, which hears only probate and guardianship proceedings.