McDaniel v. Pattison

32 P. 805, 98 Cal. 86, 1893 Cal. LEXIS 865

Opinions

The Court. —

We are satisfied, with opinions filed and the conclusion reached by Department One when this case was before it for decision, and the judgment is therefore reversed.

In their petition for a rehearing respondents, claim that they are entitled to assert their rights as heirs, but it is evident from the pleadings, findings, and decree that the parties and the court below ¡proceeded upon the theory that plaintiffs were claiming as devisees and not as heirs. The decree therefore cannot be modified, but we think there is enough in the complaint to justify an order allowing the plaintiffs to amend their complaint? if they desire so to do, so as to assert any claim they may have by reason of their heirship.

The judgment and order are reversed, and the cause is remanded with directions to allow the parties to amend their pleadings, if they be so advised.

Garoutte, J., McFarland, J., Paterson, J., Harrison, J.