Barber v. Superior Court

CONREY, P. J.

The petitioner applied for a writ of prohibition commanding respondents to refrain from certain threatened proceedings in an action numbered 26,366 and entitled

Ostergard, Administratrix, et al.

v.

E. M. Barber and United States Fidelity and Guaranty Company.

An alternative writ was issued. Respondents’ return is in the form of a demurrer, which rests upon the ground that the facts alleged are not sufficient to entitle petitioner to the demanded relief.

Barber was administrator of the estate of James Ostergard, deceased. His final account and petition for settlement and distribution of that estate were filed on the tenth day of September, 1914, in the superior court of San Diego County. On the twenty-ninth day of that month the account

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was approved by order of court, and a decree of final distribution followed in due course. On the sixth day of July, 1916, the letters of administration of Barber were revoked. On the eighth day of July, 1916, Ingina Ostergard was appointed administratrix of said estate.

Thereafter, Ingina Ostergard, as administratrix, together with Victoria Jensen, Mary Larsen, and Ingina Ostergard, claiming to be the only heirs at law of James Ostergard, deceased, and claiming to be the only persons interested in his estate, commenced said action No. 26,366. In that action facts were alleged showing that said final account of Barber as administrator was false and fraudulent, and that in fact he failed to account for a large amount of the assets of the estate, and falsely credited himself with sundry sums for which in fact he was not entitled to receive credit; that the time within which an appeal might have been taken or any application for relief made, as against said order and decree in the probate proceeding, had expired before the alleged fraudulent acts of Barber were discovered by the plaintiffs. Plaintiffs demanded that said order and decree be vacated; that a true account be made, and prayed for such other and further relief as is agreeable to equity.

The petition herein shows that on the twenty-second day of ■ March, 1919, in said action No. 26,366, findings of fact were entered, and conclusions of law thereon which were in favor of the plaintiffs; that the court proposes not only to set aside said order and decree in the probate proceeding, but also has made an order fixing a certain date for an accounting to be made by said Barber, before the court in said action No. 26,366.