Barrett v. Superior Court
Before: Harrison
Synopsis
Estates of Deceased Persons—Citation to Administrator and Sureties—Appearance—Continuance—Order for More Security—Service—Cessation of Bight.—Where the court, in a proceeding under section 1394 of the Code of Civil Procedure, continues the hearing under a citation upon an administrator and sureties for examination as to sufficiency of the sureties, after an appearance of the .administrator in per-' son and by attorney, such continuance has the effect to continue such appearance and to give to the order for more security, made at the adjourned hearing, the same effect as if made at the close of the original hearing, and no service of such order is required in order to effect the cessation of the right of administration, upon failure to comply with the order within the time limited therefor.
Id.—Exception to Order—Bequest to Approve Additional Bond— Waiver of Objection.—An objection that the order requiring additional security was not served is waived by taking an exception to the order when made, and by a subsequent request to the court to approve an additional bond required by the court.
Id.—Order Suspending Powers of Administrator—Appointment of Special Administrator—Power of Court—Certiorari.—Upon failure of an administrator to file the additional security required by order of the court, the court is required to appoint as administrator the person next entitled to administration who will execute a sufficient bond, and - has authority to suspend the powers of the administrator until such-further appointment can be made, and meanwhile to appoint a special administrator of the estate; and such orders are not subject to be annulled upon certiorari.
Harrison, J.—The petitioner was appointed the administratrix of the estate of Joseph Byrne, deceased, January 23, 1895, and having filed an undertaking as such administratrix, in accordance with the order of the court therefor, in the sum of seven thousand dollars» [156]with two sureties, who were approved by said court, letters of administration were issued to her. June 15, 1895, the judge of said court, of his own motion, ordered a citation to be issued to the sureties on said undertaking, requiring them to appear before him at the courtroom in said county, on the twenty-fourth day of June, to be examined touching their property and its value, and that a citation be issued also to the administratrix requiring her presence at said hearing. In obedience to said citation, said sureties and the administratrix appeared at said time and place, and the sureties were then examined by the judge, and the further hearing •continued for one week. July 1st an order was made and entered by said court to the effect that said sureties were insufficient, and requiring the administratrix to file additional security within five days. This order was not served upon the administratrix, nor was any notice thereof given her, nor was any order made that she be notified thereof. July 9, 1895, an order was made by the court suspending the powers of the administratrix, and also another order appointing a special administrator of said estate. The present application is for a writ of review, and to annul the last-named orders upon the ground that they were without the jurisdiction of the court. The ground upon which it is claimed by the petitioner that the order was without the jurisdiction of the court is that no notice of the order requiring her to give the additional security was ever served upon her, and that before she could be in default for not complying therewith she was entitled to notice thereof, and that without such service of notice the court had no power to make an order visiting her with any penalty.
The proceedings were taken under the provisions of section 1394 of the Code of Civil Procedure, and the petitioner was present in person and by her attorney at the hearing of the citation. At the close of the examination on that day an order was made by the court and entered in its minutes, “ That the further hearing of the matter be regularly continued and deferred for one [157]
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