Opinion
Department Two
122 Cal. 260 at 267.
Original Opinion of October 8, 1898, Reported at 122 Cal. 260.
OPINION
THE COURT The following opinion was rendered by the court in Bank, upon petition for rehearing, on the 7th of November, 1898:
The appellant in this cause petitions for a rehearing after judgment in Department. As the appeal was submitted without oral argument, and has been reconsidered by the court in Bank upon the briefs and petition, we have concluded to modify the judgment of the Department without further delay in those slight particulars in which we think it is erroneous.
In addition to those items of the account which were approved by the findings, but omitted from the order settling the account, we are of the opinion that the charge of twenty dollars, designated in the opinion heretofore rendered as item 7, should have been allowed. The evidence does not support finding 36, upon which it was rejected. It appears without contradiction in the evidence that Mr. Lardner, the local attorney at Auburn, was not in favor of appealing from the erroneous order directing the sale of the real estate, and that the administratrix was in favor of appealing. She consulted Mr. Merrill, whose advice coincided with her views, and he took and successfully prosecuted the appeal. Whatever advantage accrued to the estate from the reversal of that order was due to Mr. Merrill's professional services. To enable him to perform these services intelligently and properly, a visit to Placer county, where the estate was in process of administration, and where the papers and records were, was proper and expedient. The reversal of the order of sale entirely justifies the appeal and every step taken in its prosecution, irrespective of the claim that the estate profited largely by the postponement of the sale.
For the same reasons the charge of $ 10, designated in the Department opinion as item 11, ought to have been allowed. Finding 45, that it was unreasonable and unnecessary, is not supported by the evidence. The allowance to Mr. Merrill of only fifty dollars for his services in prosecuting that appeal is certainly extremely meager, and far less than the sum we should have been willing to approve, but there is no ground upon which we can hold that the superior court abused its discretion in fixing his allowance in that amount.
The court in Bank, upon rehearing, orders that the order appealed from be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. The appellant will recover her costs of appeal. In other respects the judgment of the Department will stand.