Cass v. Hutton

MELVIN, J.

On July 17, 1906, F. S. Hutton was duly appointed by the superior court of Los Angeles County administrator of the estate of Mary A. Bragg, deceased. He duly qualified as such administrator, and thereafter a suit was brought against him in his capacity of administrator of the estate of Mary A. Bragg, deceased, by F. O. Cass to quiet title to certain lots in the town of Broadacres, county of Los Angeles. The said administrator filed an answer in this suit; the cause was duly tried, and a decree quieting the title of plaintiff in and to said lots was duly made and entered on August 16, 1906. Almost a year later, on August 2, 1907,

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appellants Eugenia H. Bragg, Marion B. Laws, and Caleb S. Bragg presented their motion to said superior court praying that the judgment of August 16, 1906, be set aside, and that they, as heirs at law and next of kin of Mary A. Bragg, deceased, be permitted to file an answer, a copy of which was annexed to their petition. Their notice of motion states the basis of their application as follows: “Said motion is made upon the grounds that the said moving parties are the only real parties in interest in the said suit; that they have their residence without the state of California; and that no service of summons in the said action has been made upon them; and upon the further ground that no real defense to the action was made by said Hutton as administrator of said estate, but that the judgment which appears made and entered in this cause was permissive; and upon the ground that a good and meritorious defense exists to the action upon the merits.” The form of answer annexed to the petition traverses the allegations of the complaint; alleges ownership in fee of the said lots in the estate of Mary A. Bragg, deceased, and prays a judgment in favor of said estate quieting its title. The petition of Marion B. Laws affirms that Mary A. Bragg died in Ohio in the year 1902, leaving two sons, C. C. Bragg and C. F. Bragg (both since deceased); that Eugenia H. Bragg is the widow of C. C. Bragg, that Caleb S. Bragg and Marion B. Laws are his children; that Eugenia H. Bragg has acquired by conveyance the interests of the two surviving children of C. F. Bragg, deceased, and that these five persons are the only heirs at law of Mary A. Bragg, deceased. The petition further alleges that Hutton’s appointment was without the knowledge or consent of any of these heirs at law of Mary A. Bragg, deceased; that said Hutton’s application for letters of administration was made for the purpose of allowing suits to be commenced against the estate; that he had not contested any of the suits brought against him in his capacity as administrator; and that she and her co-heirs being non-residents of this state had no knowledge of the suit to quiet title until May, 1907. Upon information and belief it is stated that the estate of Mary A. Bragg owns the property in question and that plaintiff’s only claim óf title is “based upon certain pretended tax-deeds; and that said deeds are invalid for the reason that no valid assessment, notice of sale, sale, certificate of sale, notice to re