Sidebotham v. Superior Court

AGEE, J. pro tem.* Petitioner seeks a peremptory writ of prohibition restraining the Superior Court of the State of California in and for the City and County of San Francisco, the Honorable George W. Sehonfeld presiding, from resuming and completing the trial of action numbered 431997 therein.

Petitioner is the former wife of Robert Russell Sidebotham, who died intestate on December 21, 1951. She had obtained a Nevada divorce from him on November 16, 1946, and the validity of that divorce is not in question.

On October 10, 1952, petitioner commenced an action against the administrator of the estate of her deceased husband and his heirs at law to have one-half of certain assets (mostly money) in the possession of her former husband at the time of his death declared to be hers as a tenant in common therein with him and, upon his death, his estate. She obtained judgment. The trial court reached the following conclusions of law: “1. That all of the monies, assets, and properties possessed and controlled by the decedent at the time of his death on December 21, 1951, and held for and on account of the Estate of Robert Sidebotham, deceased, excepting the sum of $10,015.06, thereof, were acquired and accumulated by said decedent, prior to November 14, 1946. [The date of the divorce.] 2. That plaintiff [petitioner herein] has at all times since November 14, 1946, been the owner and entitled to the possession of an undivided one half thereof as tenant in common.” Petitioner’s theory in that case was that her deceased husband had wrongfully concealed from her the existence of this property at the time of the divorce, that it was community property, and that it was not disposed of in the divorce action. The judgment was entered on February 27, 1956, and is not final because an appeal therefrom is pending.

The action first mentioned in this opinion, Number 431997, was commenced on October 3, 1953, by 110 plaintiffs, who claimed that funds entrusted by them to decedent and one [160]Huttaball had been misused and that the assets possessed by decedent at the time of his death originated from such misused funds and should be impressed with a constructive trust. The administrator of the decedent’s estate, Huttaball and petitioner were named as defendants. (The plaintiffs apparently had learned of petitioner’s claim and so joined her as a party.) None of the plaintiffs were parties to the previous action.

On October 27, 1954, the attorney for the administrator advised petitioner’s attorney of the action and warned him that, if it was successful, the assets of the estate would be almost entirely exhausted. He asked that petitioner appear or that he be advised of her address so that she could be brought into the action. Petitioner did not appear in the action and her counsel did not disclose her whereabouts.