83 Cal. 49 | Cal. | 1890
Un August 19, 1889, plaintiff filed a petition herein, alleging that, notwithstanding the fact that he had appealed from an order of the superior court settling his account as executor,—in which he was required to account for $9,847.29 more, he alleged, than he should be charged with, — said court claimed that the appeal did not suspend the operation of the order settling said account, and, on application of the heirs, was proceeding to a final distribution of the estate. Upon this petition, an alternative writ of prohibition was issued out of this court commanding the superior court to refrain from further hearing the said petition for final dis
We see no good reason for refusing to grant the application. The writ, if made peremptory, would prohibit the court only from proceeding to a final distribution until the determination of the appeal from the order settling the account of the executor. As that proceeding has been entirely abandoned in the court below, and the parties interested have stipulated not to renew their application, the issuance of a peremptory writ could serve no useful purpose. The question, whether the heirs are entitled to proceed under section 1663 of the Code of Civil Procedure for a partial distribution, pending the appeal from the order settling the account, is. not before us in this proceeding.
McFarland, J., Fox, J., Beatty, C. J., and Sharp-stein, J., concurred.