Barrett v. Superior Court

GAROUTTE, J. This is an application for a writ of review, asking the court to annul an order made by the superior court of Placer county in the month of May, 1896, appointing one Mitchell administrator of the estate of Joseph Byrn, [570]deceased. It is claimed that such order was beyond the jurisdiction of the court.

Petitioner, Maggie Barrett, was the administratrix of the estate of said deceased. Upon the fifteenth day of June, 1895, the judge of said court issued a citation to her and the sureties upon her bond, ordering them to appear before him upon a certain named day and be examined as to their property and its value. This hearing resulted in the court making an order, upon July 1, 1895, that the administratrix furnish additional security in a certain named amount within the next five succeeding days. This additional security was not furnished to the judge within the time fixed, but a new bond was presented to the judge for approval some seven days thereafter, and approval thereof was refused. Upon July 9th, at the hour of 10 A. M., said superior court made the following order, which was duly entered in its minutes, in the matter of the estate of Joseph Byrn, deceased: “That the right of the administratrix to the administration of this estate cease.” Thereafter, upon the same day, at 2 P. M., the court made the following order, which was entered in the minutes: “That her powers as such administratrix be, and the same are hereby, suspended, and her letters as such revoked, until the further hearing upon the question of her permanent removal, now pending, to be heard on September 12, 1895.”

Petitioner sustains her application for the writ upon the ground that her letters of administration had not been revoked when her successor was appointed, and, in fact, never have been revoked, and hence such appointment was without the court’s jurisdiction. Some of the orders of the superior court made in this case have already been before us upon a writ of review (see Barrett v. Superior Court, 111 Cal. 154, 43 Pac. 519), and it was there, at least incidentally, held that a failure to comply with the order of the court requiring the giving of additional security resulted, ipso facto, in a revocation of her letters. This court said: “Section 1395 does not require any order to be served upon the administratrix, but declares that the mere failure to give the security within the time fixed by the judge’s order shall, of itself, without any further action on the part of the court, cause the right of the administrator to the administration to cease.” The section declares: “If sufficient security is not given within the