Estate of Ohm v. Judge

Vancliee, C. This is a proceeding in the probate department of the superior court of the city and county of San Francisco, on the petition of Susan E. Judge, based on sections 1589, 1590, and 1591 of the Code of Civil Procedure, and stating, substantially, that the deceased, in his lifetime, owned a large amount of valuable real estate, which was community property of himself and his wife, Augusta L. Ohm, and which he had conveyed to his wife, without consideration, for the purpose of defrauding his creditors, of whom the petitioner was one, in the sum of five thousand dollars; that the petitioner, in due time, presented to the administratrix of [161]the estate, for allowance, her claim for said sum of five thousand dollars, which was rejected by the administra-’ trix, and that petitioner had commenced an action in the superior court against the administratrix for the recovery of the same, which action is still pending and undetermined; that there are not sufficient assets of said estate to pay the claim if judgment shall be recovered therefor; that the petitioner requested said administratrix to commence and prosecute an action against Augusta L. Ohm to recover said property so fraudulently conveyed, offering to defray all expenses of such action, and that the administratrix refused to commence such action. The prayer of the petition is, that the court order the administratrix to allow her name to be used as plaintiff in an action against Augusta L. Ohm to set aside said fraudulent conveyance made to her by the decedent in his lifetime, and to have the property so conveyed adjudged to be the property of the estate, sub- ■ ject to the payment of its debts.

On the hearing, the court “ordered that said petitioner, Susan E. Judge, be and she hereby is allowed to sue for said real estate in the name of Anna A. Ohm, said administratrix; and said Anna A. Ohm, administratrix, is hereby ordered to allow her name to be used in any such suit for the recovery thereof for the benefit of said estate and the creditors thereof, and any such suit to be prosecuted to final judgment, on the condition that said petitioner, Susan E. Judge, defray all expenses and costs of such suit and save the said administratrix harmless therefrom.”

From this order the administratrix appeals; and the only point made by counsel for respondent is that the order is not an appealable order.

The appellant’s counsel contends, however, that the order appealed from was made in a “special proceeding commenced in a superior court,” and is the “final judgment-entered” therein, in the sense of the first division