Fay v. Steubenrauch

California Supreme Court

Fay v. Steubenrauch

72 P. 156, 138 Cal. 656, 1903 Cal. LEXIS 741

CourtCalifornia Supreme Court

DecidedMarch 20, 1903

DocketS.F. No. 2838.

StatusPublished

Cited by9 cases

This text of 72 P. 156 (Fay v. Steubenrauch) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fay v. Steubenrauch, 72 P. 156, 138 Cal. 656, 1903 Cal. LEXIS 741 (Cal. 1903).

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Opinion

HENSHAW, J.

This is an application for the substitution of S. P. Lunt, as appellant, in place and stead of A. M. Quinn. In support of the application, it is made to appear that the action was to foreclose a mortgage executed by defendant Steubenrauch upon lands which were subsequently conveyed to the defendant Quinn. After decree of foreclosure and appeal to this court therefrom, defendant Quinn conveyed the land to S. P. Lunt, and subsequent to this conveyance died. There has been no administration upon .the estate of Quinn, and the estate is no longer interested in the outcome of the litigation.

Section 385 of the Code of Civil Procedure, providing that the court may allow the person to whom the transfer is made to be substituted in the action or proceeding, is a permissive statute, and appeals to the discretion of the court. (Emerson v. McWhirter, 128 Cal. 268.) Under the facts shown, this discretion will be properly exercised by an order of substitution as prayed for. It is proper to add, however, that in every case of appeal to this court the cause is removed from the superior court only for the purpose and only to the extent of giving full and complete jurisdiction to this court of such matters as are properly cognizable upon appeal. To the end that the record in the trial court may be kept straight, and vexatious questions as to liens upon property, liability for costs, and the like, may be avoided, in the generality of cases the proper procedure would be to obtain the order of substitution in the first instance from the trial courts and make application to this court for like substitution upon presentation of such order; and in every ease where the substitution is obtained first in this court, the regular and orderly *658 procedure dictates that a like substitution should be made in the superior court. (Reay v. Heazelton, 128 Cal. 335.)

It is ordered that S. P. Lunt be substituted as appellant in the above-entitled cause in place of A. M. Quinn.

McFarland, J., Shaw, J., Van Dyke, J., Angellotti, J., and Lorigan, J., concurred.

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HENSHAW, J.

This is an application for the substitution of S. P. Lunt, as appellant, in place and stead of A. M. Quinn. In support of the application, it is made to appear that the action was to foreclose a mortgage executed by defendant Steubenrauch upon lands which were subsequently conveyed to the defendant Quinn. After decree of foreclosure and appeal to this court therefrom, defendant Quinn conveyed the land to S. P. Lunt, and subsequent to this conveyance died. There has been no administration upon .the estate of Quinn, and the estate is no longer interested in the outcome of the litigation.

Section 385 of the Code of Civil Procedure, providing that the court may allow the person to whom the transfer is made to be substituted in the action or proceeding, is a permissive statute, and appeals to the discretion of the court. (Emerson v. McWhirter, 128 Cal. 268.) Under the facts shown, this discretion will be properly exercised by an order of substitution as prayed for. It is proper to add, however, that in every case of appeal to this court the cause is removed from the superior court only for the purpose and only to the extent of giving full and complete jurisdiction to this court of such matters as are properly cognizable upon appeal. To the end that the record in the trial court may be kept straight, and vexatious questions as to liens upon property, liability for costs, and the like, may be avoided, in the generality of cases the proper procedure would be to obtain the order of substitution in the first instance from the trial courts and make application to this court for like substitution upon presentation of such order; and in every ease where the substitution is obtained first in this court, the regular and orderly *658 procedure dictates that a like substitution should be made in the superior court. (Reay v. Heazelton, 128 Cal. 335.)

It is ordered that S. P. Lunt be substituted as appellant in the above-entitled cause in place of A. M. Quinn.

McFarland, J., Shaw, J., Van Dyke, J., Angellotti, J., and Lorigan, J., concurred.

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Bluebook (online)

72 P. 156, 138 Cal. 656, 1903 Cal. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fay-v-steubenrauch-cal-1903.

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