Daly v. Pennie

86 Cal. 552 | Cal. | 1890

Hayne, C.

— The defendants had final judgment upon demurrer to the second amended complaint, and the plaintiffs appeal. The material facts shown by the pleading are as follows: —

Anna J. Skerrett died in London, England, being a resident of said place at the time of her death, and leaving a will. This will was proved in an English court, and an administrator with the will annexed appointed there. A duly authenticated copy was filed in the prohate court of San Francisco, and the defendant Pennie was appointed administrator with the will annexed here. In due course, the San Francisco court made a decree of settlement of the final account of its administrator, and of final distribution of the property remaining in his hands. This decree recited, among other things, that there were unpaid creditors in England, whose claims liad not been presented here; that the estate in England was not sufficient to pay such claims, and that all the legatees and devisees resided in England, except one, whose legacy had lapsed, and another, who had received his share, and contained a provision that the sum remaining in the hands of the administrator here should be delivered to the administrator in England. (See Code Civ. Proc., sec. 1867.) The plaintiffs are the successors in interest of certain heirs at law, and the suit is for an injunction to restrain the defendants from obeying the decree of distribution, and for a review thereof, and for a decree of distribution in accordance with the plaintiffs’ views of what is proper under the circumstances.

The main ground upon which relief is sought is, that the decree of distribution is erroneous both as to the law and as to the facts; that the bequests were void under the law of this state and of England; and that, upon a proper construction of the will, the persons to whose interests the plaintiffs succeeded would be entitled to portions of the estate.

But an appeal from the decree is provided by the statute (Code Civ. Proc., sec. 963), and on such appeal the whole decree can be reviewed. If it be erroneous, either as to the law or the facts, the remedy is by appeal. Mere error is not a ground for relief in equity.

It is alleged, however, that an appeal was taken, but that “ the clerk having charge of such matters in the office of the plaintiffs’ attorneys inadvertently omitted to file an undertaking on appeal within the time required by law, and said appeal was for that reason dismissed by the supreme court without hearing the merits thereof.” This is not. a ground for relief in equity. (Barnett v. Kilbourne, 3 Cal. 327.)

It is further alleged that the plaintiffs’ assignors “received no notice of said proceeding, and did not appear therein.” But the statute does not require that personal notice should be given. (Code Civ. Proc., secs. 1633,1634.) And it is not alleged that the notice which is required was not given. (In re Griffith, 84 Cal. 109.)

The other matters do not require special notice.

We therefore advise that the judgment be affirmed.

Foote, C., and Belcher, 0. C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.