More v. More

THE COURT.

The plaintiff, H. Clifford More, as administrator of the estate of Lawrence W. More, deceased, brought this action against John F. More, administrator of the estate of Alexander P. More, deceased, to establish his claim of thirteen thousand six hundred and seventy dollars and fourteen cents against the estate of said Alexander P. More, deceased, under section 1498 of the. Code of Civil Procedure. On January 15,

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1897, judgment was entered for plaintiff for the full amount of his claim. Afterward John F. More, and Eliza M. Miller, who had been appointed special administratrix of the estate, moved to vacate and set aside the judgment upon the ground that at the time it was rendered the said John F. More was not administrator of the estate. Upon the hearing of the motion it appeared by stipulation that the said John F. More had been on the first day of June, 1896, suspended as administrator, and that on June 4,1896, Eliza M. Miller had been appointed special administratrix of the estate, and that on the twenty-first day of September, 1896, the court had revoked and annulled the letters of administration which had been issued to John F. More, and that on the twentieth day of November, 1896, the said John F. More had taken an appeal to this court from the order revoking his letters, and that such appeal is still pending. On April 13, 1897, the court granted the motion to vacate the decision and judgment, and made an order annulling and setting the same aside. From this order the plaintiff appealed, and this appeal is the one now before the court, being designated as No. 1104.

When this appeal was submitted to this court in Department there was also another appeal, designated as No. 897, submitted, which was an appeal taken by certain intervenors from the original judgment and from an order striking out their intervention. In an opinion submitted to the court by the commissioners, which covered both appeals, it was recommended that the appeal No. 897 be dismissed, and that in this present appeal, No. 1104, the order appealed from be affirmed. This opinion was approved by the Department and judgment was entered accordingly. Upon a petition for hearing in Bank of both appeals the petition was denied as to No. 897, although the order dismissing the appeal was modified and based upon a ground other than the one taken in the opinion of the commissioners. (See 54 Pac. Rep. 263.) The appeal No. 1104 is, therefore, the only one now pending here in the case.