United State of Fidelity & Guaranty Co. v. Superior Court

WORKS, J.,

pro

tem.

On September 14, 1917, upon petition regularly filed, the respondent made an order appointing Ingina Ostergard special administratrix of the estate of Bjelka Paulsen, deceased; but at the hearing on the petition no evidence was received of the death of Bjelka Paulsen. This proceeding is instituted for an annulment of the order because of the lack of the evidence mentioned. An administrator of the estate of a person manifestly cannot be appointed until such person is deceased, and the only manner ' in which death can be shown to the court which is asked to appoint is by the production of evidence of death. When a tribunal is clothed with authority or jurisdiction to act only upon the existence of certain facts and it receives no evidence tending to show that such facts exist, its action is void for want of jurisdiction and will be annulled upon proceedings under the writ of review

(Great Western Power Co.

v.

Pillsbury,

170 Cal. 180, 184, 185, [149 Pac. 35]), provided, of course, no right of appeal exists in the premises; and no ap

[656]

peal lies from an order appointing a special administrator (Code Civ. Proc., sec. 1413).

The respondent apparently concedes the invalidity of the order appointing the administratrix, for counsel makes no reply, in his argument, to the contention of petitioner that the order is void. At any rate, it is void. To clarify the situation, it may be stated that the order of appointment .was made upon a recital of the fact of death in an affidavit, which, of course, was not evidence, as affidavits may be used as evidence only in cases expressly permitted by the code (Code Civ. Proc., sec. 2009), and that permission is not given in the case of an application for the appointment of an administrator, either general or special.

There is but one real controversy presented for our consideration and what we have said above is only introductory to it. Section 1069 of the Code of Civil Procedure provides that the writ of review will issue on the petition of the party beneficially interested in a given controversy, and the respondent contends that the petitioner has not such an interest in .the outcome of the present proceeding. A more complete statement of the facts is necessary to a discussion of this question. The petitioner is surety upon the bond of E. M. Barber as administrator of the estate of James Ostergard, deceased. The letters of Barber were revoked and a new administrator was appointed in his stead'. The new administrator commenced suit for fraud in the administration of the estate against Barber and petitioner, upon Barber’s bond. The superior court then ordered that all parties having an interest in the estate of James Ostergard, deceased, be joined as parties plaintiff to that action. Bjelka Paulsen was an heir at law of the decedent, and therefore came within the order. Thereupon,- and for the purpose of complying with the order as to parties, Ingina Ostergard filed her petition for appointment as special administratrix of the estate of Bjelka Paulsen, deceased, alleging the death of the latter. The petition came on for hearing with the result above stated. The petitioner in this proceeding presented to respondent, before the filing of its petition here,.a motion to set aside the appointment of the special administratrix on the ground that the court heard no evidence of Bjelka Paulsen’s death and the application was denied. By this step petitioner put itself in proper train for the maintenance of this proceeding