In re Houghton

McKinstry, J. On the 7th day of January, 1884, this court made an order “ in the matter of the estate of Allen E. Rose, deceased,” wherein (after reciting that William B. Rose, as guardian of the estate of Louis Allen Rose, aged seven years, Lydia Rose, aged three years, and Ethel Rose, aged two years, only heirs of Allen E. Rose, deceased, and as a creditor of the estate of said Rose, had presented a petition for leave to prove a bill of exceptions to be used in this court on an appeal taken by him as such guardian and creditor, from an order made in the Superior Court of Kern County, allowing the account of H. Hirshfield, administrator of the- estate of said Allen E. Rose, deceased, and alleging in the said petition that the Hon. B. Brundage, judge of the said Superior Court- for Kern County, refuses to allow said bill of exceptions), orders: That said petition be referred to the Hon. W. W. Cross, judge of the Superior Court of Tulare County, and that said petitioner appear before said W. W. Cross and prove his bill of exceptions in accordance with the facts, in case said bill has not been properly settled, and when so proven, the same to be certified as correct by the Hon. W. W. Cross, and filed in the Superior Court of Kern County. The order further required Judge Cross to give a certain notice of the time, etc., when the bill was to be settled to Judge Brundage, the attorney appointed by Judge Brundage to represent minor heirs and the attorney of Rose.

The hearing of the motion to settle the bill of exceptions was set by Hon. W. W. Cross for the 26th day of January, 1884, and notice thereof served on the several parties named as required by the order of the Supreme Court. On the 21st day of said January, J. W. Freeman, Esq., attorney for the minor heirs, R. E. Arick, Esq., attorney for the administrator, and Stetson & Houghton (R. E. Houghton) attorneys for petitioner, entered into and signed a stipulation in words and figures following:—

“In the matter of the settlement of a bill of exceptions:—

“Estate of Allen E. Rose, deceased.

„ “The hearing in the said matter having been heretofore set by Judge W. W. Cross, for Saturday, January 26,-1884, at 10 [513]o’clock A. M., at Visalia, Cal., we consent that the hearing may be continued to Saturday, the 2d day of February, 1884, at 10 o’clock A. M., at the same place.”

On the 29th of January, 1884, H. Hirshfield, administrator of the estate of Allen E. Rose, deceased, by Flournoy, Mhoon & Flournoy as his attorneys, moved this court (Department Two), upon affidavit of said Hirshfield, that the order of the 7th of January, referring the petition of W. B. Rose as guardian, etc., to the Hon. W. W. Cross, and authorizing him to settle the proposed bill of exceptions, be vacated and set aside; which said motion was continued for hearing until the 1st day of February, 1884. On the day and year last mentioned R. E. Houghton, Esq., appeared in opposition to said motion, and J. B. Mhoon, Esq., in support thereof, and the said R. E. Houghton, Esq., then and there, before Department Two aforesaid, read in opposition to the motion his affidavit (previously filed) duly subscribed and sworn to by him, a portion whereof is as follows: —