183 P. 606 | Cal. Ct. App. | 1919
By this application petitioner asks that upon a writ ofcertiorari we set aside and annul the action of the court in vacating orders made for the distribution of the estate of a deceased person and discharge of the administratrix.
The facts upon which the action of the court was based are as follows: The petitioner, Lida S. Crane, was administratrix of the estate of James E. Crane, deceased, and up to July 8, 1918, Robert L. Hubbard and N. B. Bachtell represented her as attorneys. On said date Thomas K. Case was, subject to the right of Hubbard and Bachtell to an *287 allowance of attorneys' fees for services rendered, substituted as attorney, and as such thereafter appeared for the administratrix. On July 30, 1918, the administratrix filed her first and final account, accompanied by a petition for an order distributing the estate to herself as sole heir, the hearing, of which, after due notice given, was had on August 13, 1918, at which time an order was made settling the account and the estate ordered distributed to petitioner. On August 29, 1918, Hubbard and Bachtell filed with the clerk of the court an application to have their fees as attorneys for the administratrix fixed and allowed by the court. Thereafter, and without any receipt having been filed showing the estate had been distributed, the court on August 31st made an order discharging the administratrix. No hearing of the application to fix and allow the fees of Hubbard and Bachtell was had. Thereafter, on October 21, 1918, the court, upon motion' of Hubbard and Bachtell, entered an order vacating the order discharging the administratrix; and on February 3, 1919, Hubbard and Bachtell served upon the administratrix a notice of motion for orders vacating the orders approving the final account and decree of distribution. Said motion was made on February 10, 1919, and the hearing continued from said date to February 20, 1919, at which time it was heard, and on May 6, 1919, the court made findings to the effect that said orders settling the final account and decreeing distribution of the estate were inadvertently made and under a misapprehension of the court that all claims against the estate had been paid, for which reason it was ordered that said orders and each of them be vacated, annulled and set aside.
[1] It appears from the record presented that the orders settling the account, decreeing distribution of the estate, and discharging the administratrix were all duly and regularly made after due notice to all parties interested of the time fixed for the hearing of the application for the orders. The order vacating the order discharging the administratrix was in response to a motion therefor made by Hubbard and Bachtell; but the record is wholly silent as to the ground or reasons assigned in support of the motion, in the absence of which it appears that the court acted upon a mere request of these attorneys, who, appearing for respondents, now insist, upon the authority of Wiggin v. Superior Court, *288
As to the orders made vacating the order settling the account and distributing the estate, they were in response to a motion, based upon the files and records of the case, made on February 10, 1919, pursuant to notice theretofore served, the ground therefor, as stated in the notice, being that said orders were improvidently made in that the action of the court in approving the final account was procured by false representations made by the administratrix to the effect that all obligations of the estate had been fully discharged and that at said time a motion was pending in said court to have it fix and determine the fees of said Hubbard and Bachtell. The application was made and heard within six months from the making of the orders, and, therefore, was within the time fixed therefor by section
[4] We may repeat that we adhere to what was said in the opinion in the Nason case, the language of which we deem determinative of this, viz., that the court had no power to set aside and vacate the orders, save and except under the provisions of section
The orders made vacating and setting aside the orders settling the final account, decreeing distribution, and discharging the administratrix are annulled.
Conrey, P. J., and James, J., concurred. *290