State v. Superior Court

BARNARD, P. J.

This is an application for a writ of prohibition to restrain the respondent court from taking proceedings to determine heirship and the right of certain claimants to the money of an estate after the same has been paid into the state treasury.

The facts are not disputed and are as follows: In passing upon the final account of the public administrator in the estate of John C. Kelly, deceased, then pending before it, the respondent court on June 6, 1930, entered what the respondents denominate a final decree which contained, among other things, the following:

“It is further ordered that the final account be approved and settled as presented; that the names, residences and respective shares of the heirs of said deceased cannot at this time be ascertained.

“It is further ordered that the residue of said estate, consisting of Fourteen Thousand, Nine Hundred Eighty-four and 61/100 Dollars ($14,984.61) in cash be paid to the

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County Treasurer of San Diego County, California, to be held and disposed of according to law.”

Pursuant to said decree, the money therein referred to was paid to the treasurer of San Diego County on August 11, 1930. On December 13, 1930, one Patrick Kelly filed a petition in the respondent court in the matter of this estate, alleging that he was a nephew of the decedent and his only heir at law, and praying for an order requiring the county treasurer to pay to him the money in his hands belonging to said estate. An order to show cause why the prayer of this petition should not be granted was issued, but the record discloses neither a hearing thereon nor any continuance. On Hay 7, 1932, Marie Kelly, Edward John Kelly and Julia E. Kelly filed a petition in this same estate alleging that they were the widow, son and daughter, respectively, of the said John C. Kelly, deceased, and praying for an order adjudging them to be his only heirs at law and for an order requiring the county treasurer to pay to them the money referred to. An order was issued requiring all persons to show cause on May 20, 1932, why the prayer of said petition should not be granted. While the record does not show that a hearing in response to this order was ever had or any continuance ordered, the respondents, in their brief, state that a hearing thereon was continued from time to time until the proceedings hereafter mentioned. On December 30, 1932, pursuant to an order made by the respondent court, the treasurer of the county of San Diego paid the money in question to the treasurer of the state of California. On January 17, 1933, a motion for an order vacating and setting aside the prior order directing the county treasurer to pay the money to the state treasurer, which motion was made on behalf of the four claimants above named, came on for hearing before the respondent court and judge. While the decision upon this motion was held in abeyance, the court, over an objection that it was without jurisdiction in the matter, proceeded to take testimony and receive evidence relating to the right of the claimants to receive said money. The court later denied a motion made by the district attorney to strike out all of the testimony and evidence received on the grounds that the court had no jurisdiction, that the decree of June 6, 1930, had become final, no appeal having been taken and no pro