Bundy v. Barnes

188 P. 610, 45 Cal. App. 746, 1920 Cal. App. LEXIS 678

Opinion

PBEWETT, J., pro tem.

This proceeding, although entitled as a separate matter, is, in fact, ancillary to the matter .of the Estate of Bundy, 44 Cal. App. 466, [186 Pac. 811].

The purpose of the petitioner was to secure a restraining order restraining said guardian and said superior court from proceeding further with an action,- pending in said court, entitled Heilman Commercial Trust and Savings Bank against Security Trust and Savings Bank, pending the hearing of above estate matter on appeal.

The supreme court issued the temporary restraining order as prayed for and the matter was subsequently transferred to this court.

On December 13, 1919, the above-named guardian filed his cross-petition asking that said superior court be further restrained and this court issued its additional restraining order in conformity with the prayer of said cross-petition.

[1] This court affirmed the order of the lower court in appointing a guardian for the person and estate of said incompetent (Estate of Bundy, supra), and this rendered unimportant all the questions involved in this auxiliary proceeding.

The return filed by the superior court of the county of Los Angeles shows that.the orders complained of have been vacated and set aside, hence it is unnecessary to determine whether or not an appeal court can issue its supersedeas to a lower court that is a stranger to the appeal.

Likewise, the action of this court in upholding the power of the guardian to represent the incompetent makes it profitless to determine to what extent, if any, he might have intervened in said Heilman suit.

The petitions herein are dismissed.

Ellison, P. J., pro tem., and Burnett, J., concurred.