53 P. 1077 | Cal. | 1898
H. Clifford More, as administrator of the estate of Lawrence W. More, deceased, duly presented to John F. More, as administrator of the estate of Alexander P. More, deceased, a claim for allowance, amounting to the sum of $13,670.14. The claim was at first allowed in part by the administrator and the probate judge, but thereafter the allowance was revoked and recalled by both the admin
1. The only question involved in the first appeal (No. 897), which it is necessary to consider is., Was the appeal taken in proper time? As the law stood at that time, an appeal from an appealable order or judgment was required to be taken within one year after the order is made or
2. The question involved in the second appeal (No. 1104) is, Was the judgment rendered against “John F. More, as the administrator of the estate of Alexander P. More, deceased,” invalid, he having been removed from his trust, and having ceased to be administrator of the estate some months before the judgment was entered ? If it was, there was clearly no error in setting the judgment aside on motion. It has been held in this state that a judgment rendered in favor of or against a party to the action after his death is a nullity, and, although it is not void on its face, it may be set aside on motion: Ewald v. Corbett, 32 Cal. 493; McCreery v. Everding, 44 Cal. 284; Elliott v. Paterson, 65 Cal. 109, 3 Pac. 493. It has also been held in other jurisdictions that where an executor or administrator is removed from his trust, he ceases to have any connection with the estate, and no judgment relating to its affairs can be rendered against him. In Wiggin v. Plummer, 31 N. H. 251, it is said, on page 266: “He ceases to be a party to the action on removal from his trust as absolutely as if he were dead, and the action must either be prosecuted against the' new representative of the estate or it will be discontinued. .... When the administrator is displaced, he ceases to have either interest in or power over that estate, and a judgment to reach the estate must be rendered against the party entitled to represent it. The judgment also must be for a sum to be levied of the goods and estate of the deceased in the hands of the defendant administrator, to be administered. Such a judgment cannot be rendered against one who appears by the record not to be administrator.” In National Bank v. Stanton, 116 Mass. 435, it is said: “Upon her removal from the office of executrix, her liability to and right to defend against this action ceased. • It follows that no judgment therein can be rendered against her.” In Re Dunham’s Estate, 8 Ohio C. C. 162, it is said: “We are of
It is objected, however, for the appellant that the effect of the order removing More from his trust as administrator was suspended by his appeal therefrom until the final determination of the appeal, and that meantime he continued to be the administrator of the estate; citing In re Moore’s Estate, 86 Cal. 72, 24 Pac. 846. That ease simply holds that pending an appeal from an order removing an administrator of an estate he is suspended from office, and it is within the power of the court to appoint a special administrator to act during the period of suspension, but not to appoint a general administrator until such order or removal becomes final. It is true that pending the appeal from the order removing More he was only suspended from the office of administrator. But after the removal he ceased to be practically and in effect the administrator of the estate. He could exercise no powers and perform no duties as such. “He was as completely separated from the business of the estate as if he had been dead.” The appeal did not revive or in any way restore his powers. “The effect of an appeal from an order setting aside a judgment is not to revive the judgment. The judgment no longer exists, so far as the assertion of any rights under it is concerned, until it shall be brought into force again by a reversal of the order setting it aside.....The code does not provide that an order appealed from shall cease to exist—be annulled—• but that it cannot be further enforced by a proceeding upon it. Here the revocation of probate and the surcease of appellant’s functions as executor became complete eo instanti the order of revocation was entered”: In re Crozier’s Estate, 65 Cal. 332, 4 Pac. 109. We conclude, therefore, in view of the well-settled rules of law, that after More was
Undoubtedly the judgment might have been, and we think should have been, entered against the defendant nunc pro tunc, as of the date of the submission of the cause for decision; and it may be so entered- now, on the going down of the remittitur on this appeal: Fox v. Mining Co., 108 Cal. 478, 41 Pac. 328. We advise that appeal No. 897 be dismissed, and that the order involved in appeal No. 1104 be affirmed.
We concur: Haynes, C.; Britt, C.
For the reasons given in the foregoing opinion the appeal No. 897 is dismissed and the order involved in appeal No. 1104 is affirmed.