In re the Estate of Carpenter

14 P. 677, 73 Cal. 202, 1887 Cal. LEXIS 632

• Court: California Supreme Court
• Decided: August 18, 1887
• Docket: No. 12103
• Status: Published

Opinion

Foote, C.

— This is an appeal from an order appointing a special administrator. We are of opinion that from such an order no appeal lies.

Subdivision 3 of section 963, Code of Civil Procedure, referring to certain appealable matters, reads thus:—

“ From a judgment or order granting, refusing, or revoking letters testamentary, or of administration, or of guardianship.”

Section 1413, Code of Civil Procedure, is as follows:—

“In making the appointment of a special administrator, the court or judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment.”

In order, if possible, to harmonize the two sections of the code so that both may prove effective, it would seem as if the legislative mind, in passing the first section, was directed toward orders appointing general administrators, and did not have in view such orders as regards special administrators, and that the last section was enacted for the purpose of supplying a rule of action in the appointment of such administrators as those last mentioned.

It is presumable that this court, in delivering the opinion in the case of Estate of Crozier, 65 Cal. 333, did not have under consideration the exact question which is here involved, and did not intend thereby to pass upon it, having there no cause to determine the force and effect of the two sections of the code, supra, taken together.

It follows that the appeal should be dismissed.

Belcheb, C. C., and Hayne, C., concurred.

The Court.

— For the reasons given in the foregoing opinion, the appeal is dismissed.

Hearing in Bank denied.