Miller v. Superior Court

CRAIG, J.

By this proceeding petitioner asks that the superior court named as respondent be enjoined from further action in a suit at law in which Frank M. Kelsey, special administrator of the estate of Mary Moore Miller, is plaintiff, and George H. Miller, Jared H. Miller, and Cecil A. Sheward Miller are defendants. The instant proceeding will be referred to as the “proceeding” and the action sought .to be enjoined as the “action.”

It is the theory of petitioner that the superior court has no jurisdiction to try the action. Many authorities are cited by both sides concerning certain legal phases of the ease as presented for our consideration. However, the controversy centers upon a determination of the nature of the action. Petitioner insists that it is a suit for an accounting against an executor; respondent avers that it is an ordinary action by an administrator to secure the possession and title of the property of the estate which he represents. If the action is determined to be as contended by respondent, clearly the injunction prayed for should not issue. We think that respondent’s contention is sound.

[336]

Mary Moore Miller and Mary B. Moore were one and the same person. So much of the complaint in the action as bears upon the issue will be quoted. For the purpose of this proceeding the allegations of the complaint in the action must be assumed to be true. After first alleging that Jared H. Miller and Mary Moore Miller entered into a purported marriage, which was in fact illegal, and that 'thereafter until the death of the ostensible wife these parties lived together, holding themselves out as husband and wife, and that prior to said marriage Mary B. Moore owned large sums of money and property, the complaint goes on to state: “That after the said purported marriage of the said Jared H. Miller and the said Mary B. Moore, and at the instance of herself and the said Jared H. Miller, and as this plaintiff is informed and believes and' upon his information and belief alleges at the instigation of the said Jared H. Miller, a large portion of this property aggregating about the sum of $200,000 was transmitted to the said-Mary B. Moore, then known as Mary Miller Moore at Los Angeles, California, from time to time between the period of said purported marriage, to-wit, October 13, 1915, and the date of the death of the said Mary E. Moore, to-wit, the 17th day of February, 1921, and that some at least of these moneys were directly turned over to the said Jared H. Miller as agent for and trustee of the said Mary E. Moore, and were transmitted by him out of the State of California and without the knowledge or consent of the said Mary B'. Moore were wrongfully appropriated by him to his own use and benefit and are now being wrongfully retained by him for his own use and benefit in at least the sum of $15,000.00 and in further sums, the exact amount or amounts of which are unknown to plaintiff, and that plaintiff is informed and believes and upon such information and belief alleges that