Abrook v. Ellis (1907) · DecisionDepot

Abrook v. Ellis

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 21, 1907 No. Civ. No. 378.Published

Before: Kerrigan

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Holding. The court held that the trial court did not abuse its discretion in denying a motion for a continuance and that an order appointing an administrator cannot be collaterally attacked on the basis of an alleged insufficient bond.

Issues

Whether the trial court abused its discretion in denying a motion for a continuance.
Whether the appointment of an administrator can be collaterally attacked on the grounds of an insufficient bond.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such a motion is addressed to the discretion of the trial court, and its action will not be disturbed on appeal unless the record affirmatively shows that it abused its discretion.”

“The decree appointing John Abrook was a conclusive judicial determination of that matter, subject only to be reversed, set aside or modified on appeal, and it cannot be collaterally attacked.”

Synopsis

APPEAL from an order of the Superior Court of the City and County of San Francisco, denying a motion for a new trial. Thomas F. Graham, Judge.

The facts are stated in the opinion of the court.

KERRIGAN, J.

This is an appeal by defendants Clara Ellis and George D. Collins from an order denying their motion for a new trial.

Mary Kilroy, a resident of San Francisco, died in London September 6, 1901. At the time of her death she owned and had on deposit in certain banks in San Francisco sums of money aggregating over $15,000. The deceased was generally known by the name of Mary Kilroy, although she was sometimes called Mary Abrook. She left surviving her a husband, John Abrook, and a daughter, Clara Ellis. December 7, 1901, Clara Ellis, through her attorney George D. Collins, filed a petition for special letters of administration, wherein it is alleged that the value and character of the property of the deceased are unknown to the petitioner; that the petitioner is the daughter and the only heir and next of kin of the decedent. The petition was immediately granted, and on the same day, the petitioner having filed a bond in the sum of $1,500, special letters of administration were issued to her. She at once, as such special administratrix, drew from the German Savings and Loan Society and the Hibernia Savings and Loan Society, banking corporations, $13,069.69, and on December 10, 1901, she withdrew from the latter bank the further sum of $2,342.03. December 9 and 21, 1901, she, under her maiden name Clara Plumridge, and George D. Collins deposited jointly in the Croeker-Woolworth National Bank sums amounting to $7,840.

Clara Ellis, on December 9, 1901, and John Abrook on December 10, 1901, filed their respective petitions for general letters of administration of the estate of Mary Kilroy, deceased. The petition of John Abrook was granted, and letters issued to him April 11, 1902. The petition of Clara Ellis was denied, and on January 30, 1902, the order granting special letters to her was revoked.

This action is brought by respondent as administrator to recover the sum of $7,840 on deposit in the Croeker-Woolworth National Bank, and to enjoin appellants, Clara Ellis and George D. Collins, from withdrawing the whole or any portion

[453]

thereof. The bank answered, making no claim to the money, and requesting permission to deposit it in court and be released from all liability to anyone in relation thereto.

Abrook v. Ellis

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Synopsis

KERRIGAN, J.

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