In re Estate of Arguello , 50 Cal. 308 ( 1875 )

By the Court:

Searl, the administrator, is alleged to be an adjudicated bankrupt, and Moore, one of the sureties upon the bond required of the administrator, under the thirteen hundred and eighty-ninth section of the Code of Civil Procedure, is alleged to be insolvent. These, among other objections taken by Jose A. Arguello, were overruled by the court, as not being sufficient objections against the confirmation of the sale of the real estate reported by the administrator. The section of the code referred to provides that an additional bond must, under certain circumstances, be required by the probate judge when he orders a sale of real estate. When the order for the sale in this instance was made, the prescribed bond, though apparently in an insufficient amount, was required with two or more sufficient securities, and it must be presumed that the circumstances pointed out by the statute in that behalf, existed in the case. When, therefore, it was alleged by a party objecting to the confirmation of the sale, that the bond required by the probate judge had not, in fact, been given, the objecting party should have been permitted to submit his proof in support of the objection.

A stipulation has been filed in this Court, signed by the attorney of the administrator and by Scott as “attorney for the heirs of Santiago Arguello, deceased,” consenting that the order of confirmation be affirmed here in part; but upon looking into the record, we observe that Jose A. Arguello did not appear in the court below by attorney, but in person, and that Luce appeared for the minor heirs interested in the proceeding. As he has not signed the stipulation, we cannot act upon it as a basis for the judgment to be entered in this Court.

Order reversed, and cause remanded.