In Re Estate of Damke

GAROUTTE, J.

The public administrator of the county of Sacramento appeals from an order of the superior court of

[434]

the county of San Joaquin appointing C. C. Franklin, public administrator of that county, administrator of the estate of Fred W. Damke, deceased. He had theretofore, in said proceeding, filed a written opposition to the appointment of Franklin as administrator of said estate, claiming that said Damke, at the time of his death, was a resident of the county of Sacramento.

It is asked that this appeal be dismissed because the notice of appeal is entitled

“

In the Superior Court of the County of Sacramento,” and also by reason of other defects appearing upon its face. These objections are too technical, for the defects are unsubstantial. The notice recites that the appeal is taken from an order and decree made and entered the second day of August, 1900, directing letters of administration to issue to C. C. Franklin, public administrator of the county of San Joaquin. This order and decree was the only one made upon that day, or any other day, appointing C. C. Franklin, public administrator of the county of San Joaquin, administrator of the estate of the deceased. It is perfectly evident that respondent’s attorneys were not misled by the defects appearing upon the face of the notice, and, in addition to this, subsequent to the service of the notice a bill of exceptions was prepared and settled, to be used upon appeal from the order appointing Franklin administrator, and no suggestion was ever made that the aforesaid notice was defective in substance. Throughout the proceedings the notice has been treated as sufficient, and acted upon, and it is now too late to make the objections here made for the first time.

It is next claimed, in support of the motion to dismiss, that the appellant is not a party aggrieved, and hence has no right of appeal. Appellant claims the right to administer upon the estate of Damke, deceased, and under these circumstances is entitled to take this appeal.

(Estate of Healy,

122 Cal. 162.) If Damke was in fact a resident of Sacramento County at the time of his death, it was not only the right, but the duty, of the public administrator of Sacramento County to appear in the court of San Joaquin County and contest Franklin’s right to letters of administration. And if he had the right to contest the issuance of letters of administration to Franklin, he had the right to appeal from the decree entered against him. The fact that he claims the right to administer in Sacramento