170 P. 855 | Cal. Ct. App. | 1917
On September 14, 1917, upon petition regularly filed, the respondent made an order appointing Ingina Ostergard special administratrix of the estate of Bjelka Paulsen, deceased; but at the hearing on the petition no evidence was received of the death of Bjelka Paulsen. This proceeding is instituted for an annulment of the order because of the lack of the evidence mentioned. An administrator of the estate of a person manifestly cannot be appointed until such person is deceased, and the only manner in which death can be shown to the court which is asked to appoint is by the production of evidence of death. When a tribunal is clothed with authority or jurisdiction to act only upon the existence of certain facts and it receives no evidence tending to show that such facts exist, its action is void for want of jurisdiction and will be annulled upon proceedings under the writ of review (GreatWestern Power Co. v. Pillsbury,
The respondent apparently concedes the invalidity of the order appointing the administratrix, for counsel makes no reply, in his argument, to the contention of petitioner that the order is void. At any rate, it is void. To clarify the situation, it may be stated that the order of appointment was made upon a recital of the fact of death in an affidavit, which, of course, was not evidence, as affidavits may be used as evidence only in cases expressly permitted by the code (Code Civ. Proc., sec. 2009), and that permission is not given in the case of an application for the appointment of an administrator, either general or special.
There is but one real controversy presented for our consideration and what we have said above is only introductory to it. Section
Ingina Ostergard, as special administratrix of the estate of Bjelka Paulsen, deceased, has already been made a party plaintiff in the action on Barber's bond, although legally, as we have shown, she is not the representative of her alleged intestate. The amended complaint making her a party, although it is not before us, necessarily alleges her appointment and qualification as administratrix. If her appointment is to withstand the assault made upon it in this proceeding, and if petitioner, as a defendant in the action on the bond, shall object to the offer in evidence in that action of the special letters of administration, the objection will be overruled, because the lack of jurisdiction will not appear upon the face of the offer and because the objection will be but a collateral attack upon the order of appointment. (Emery v. Kipp,
The order of respondent appointing the special administratrix is annulled.
Conrey, P. J., and James, J., concurred.