Estate of Riviere — 7 Cal. App. 755

Majority

p. 755

[Civ. No. 489.

Second Appellate District.

March 24, 1908.]

Estate of LOUIS RIVIERE, Deceased. ALICE RIVIERE et al., Appellants, FRITZ BACHMANN, Executor, and CHARLES H. MATTINGLY, Respondents.

Headnote

Estates op Deceased Persons—Order Fixing Compensation op Attorney—Appeal.—Parties interested in the estate of a deceased person have the right to appeal from an order of the superior court making an allowance to the attorney for the executor of compensation for extraordinary services to be paid out of the funds of the estate by the executor.

Id.—Motion to Dismiss.—Such an appeal cannot be dismissed in advance of the hearing, on the ground that it has no, merit.

MOTION to dismiss an appeal from 'an order of the Superior Court of Los Angeles County fixing the compensation of the attorney for an executor. James C. Rives, Judge.

The facts are stated in the opinion of the court.

Edgar E. Lefevre, McNutt & Hannon, Edward G. Kuster, and Edward L. Hutchinson, for Appellants.

Charles H. Mattingly, for Respondents.

Motion to dismiss appeal. Charles H. Mat-tingly, as attorney for the executor and special administrator of the estate of Louis Riviere, and Fritz Bachmann, as such executor and special administrator, upon notice given pursuant to an order of court therein made, applied to the court for an order under the provisions of sections 1616 and 1619, Code of Civil Procedure, for an allowance to said executor and special administrator out of the assets of the estate for compensation on account of extraordinary services rendered by Charles H. Mattingly as such attorney, and for an order directing said executor and special administrator to pay such allowance to said attorney. Upon a hearing the court made an order whereby it fixed the attorney’s fees of said Charles H. Mattingly for services rendered, and further ordered Fritz Bachmann, as such executor and special administrator, to pay the sum so fixed to said Charles H. Mattingly as such

p. 756

attorney, out of the assets of said estate. The appeal is by parties interested in the estate, and is from that portion of the order allowing said Mattingly the sums of $1,000 and $500, respectively.

Notwithstanding the fact that the proceeding is of a dual character, on behalf of both attorney and executor, and alleged to be talien under the provisions of both of said sections 1616 and 1619, we, nevertheless, construe it as an application by the attorney for the executor and special administrator, made under the provisions of section 1616, Code of Civil Procedure, for an order requiring said executor and special administrator to pay said attorney out of the assets of the estate such compensation for services rendered as to the court may seem just and proper. Since under the express provisions of this'section the order is a subject of appeal, not only by the attorney who makes the application, but by any other interested party, it is unnecessary to consider the objection that appellants are .not parties aggrieved by the order. • Having an interest in the estate, they have the right to appeal.

There is nothing in the contention that no notice of appeal has been filed or undertaking or deposit on appeal filed or made.

A further ground for the motion is that the record does not present a case upon which this court can grant the relief for which appellants contend, nor any relief. Even if this be true, they are nevertheless entitled to a hearing upon presentation of their appeal. The fact that there is no merit in an appeal is no ground for its dismissal without a hearing.

The motion to dismiss is denied.

Allen, P. J., and Taggart, J., concurred.