The record-union., 1891-04-01

certain OF the witnesses were called as
witnesses for the co-detendant of the re-
spondent, and did not testify on behalf
OF the respondent, except in gem
eral manner in connection with III. T.
hron and that they did not
testify on behalf of Oscar Kron, as con-
tradlstinguished from III. L. Kron," is an
admission that they did in some respects,
or upon some matters. testify in behalf of
the respondent. So, too, his statement
that other witnesses ''did not testify as to
any separate issue as made by the answer
OF oscar hron," does not sufficiently
show that the items for their defense as
witnesses should be stricken from the
cost bill. The character of their testi-
mony at the trial is not a test of the
necessity for incurring the expense of
SuDpenalng them as witnesses. The
memorandum of costs filed by the re-
spondent IS supported by the affidavit of
ms attorney that "the foregoing items of
costs and disbursements i'll this action
are correct, and that the said disburSe-
ments have been necessarily incurred in
said action,' and, unless controverted,
should control the decision of the court.
Tbs fact that the items for the fees of
the Sheriff, the clerk and the reporter
We're for services performed for both de-
PENDANTS, and not "for services performed
for Oscar kron Alone" would not author
lze the court to strike these items from
himself paid all of these items, and if so
they We're expenses necessarily incurred
by him in his Defense
The order appealed from is affirmed.
HARRISON, j.
We concur:
GARoUTTE, J.,
PATERSON, j.
Filled at Sacramento. March IS, 1871
Appeal from the Superior Court of
Tulare County-Wm. w. Cross, Judge.
For appellant, Justin Jacobs.
For respondent, c. G. Lamberson.
IN BANK.
ESTATE OF J. II. DANIEL-
SON, DECEA ASED, EDWARD
ERLANGER, Appellant, No 14o5s
WIN. DANIELsoN,
Respondent.
J. II. Danielson died intestate and un-
married, leaving two brothers in this
State.
March 13, 1890, the appellant, who was
not relative Of decedent, filed petition
asking for letters and at the same time the
written consent of Theodore Danielson, a
brother OF deceased: to his appointment.
March "a, 1890, Theodore Danielson
filed petition asking for letters for him.
self.
April 7, 1890, the court appointed both
petitioners administrators, and both
qualified.
April 90, 1890, William Danielson, an
other brother of the decedent. who had
been temporarily absent from the State,
filed petition asking that Erlanger's APP
polntment be revoked, and that he be APP
pointed in his stead
July 8, 1890, the court, after due notice.
made an order revoking the letters to
Erlanger and appointed William Daniel
CON GN,,. IL, l.
sumed to be acting under Section 1888,
G. e. z. From these orders Erlanger APP
peals. July Is, 1890, the notice of appeal
was served and filed.
No undertaking on appeal was filed,
but according to statement in the tran
script an order was made September 10,
1890, dispensing with security on appeal
Such order is supposed to be authorized
by Section 946, c. c. p. 1t is also con-
tended that no bond was required under
Section 965, &C. p.
We cannot agree with this contention
Plainly on this appeal the appellant is
not acting in another's right in the sense
OF Section 946, c. G. p. And we think it
equally evident that Section 90 has no
application to this case. This is not a
proceeding had upon the estate of which
he was administrator within the purview
ofthat section. In the first place he was not
administrator. Whatever effect his appeal
Wnen perfected, would nave upon the or
der removing him, it was in full force un-
til then. 1t follows that when he filed his
notice he was not such an officer, and
then had no administrators bond Sup
pose the contrary were held, and the or
der removing him was affirmed. How
could his sureties be held for costs in
Cured after his duties as administrator
had ceased?
But the section has reference to matters
III which the estate is interested This is
his personal matter. The undertaking of
his sureties is that he shall faithfully per
form the duties of his office. How can
he be said to be discharging official duty
i'll appealing from an order relieving
him from such duty? 1t is true the
Legislature has the power to provide for
obligations not mentioned in the bond. or
entirely outside of its apparent scope.
and one becoming surety after the law
has been enacted will be bound accord
ingly, for he will be presumed to know
Of the law. But this is harsh rule, and
the Legislature will not be presumed to
have intended such consequence, unless
the intent is clear. Here the intendments
are all the other way. We think the ap-
peal should be dismissed. TEMPLE, C.
We concur:
BELCHER, c.,
VANCLIEF, G.
THE COURT.
For the reasons given in the foregoing