Knight v. Hamaker , 33 Or. 154 ( 1898 )

Mr. Justice Bean

delivered the opinion.

On May 13, 1895, the respondent, Knight, filed in the County Court of Klamath County a petition for an order directing the appellant, Hamaker, as administrator of the estate of Warren H. Mills, deceased, to pay to him the sum of $1,329 on a claim which he had against the estate; and, on a hearing regularly had, the county court adjudged and decreed that the said claim was legal and valid, and directed Hamaker to pay the same in full out of the assets in his hands belonging to the estate. From this order Hamaker appealed to the circuit court, and on November 8, 1895, his appeal was dismissed. On March 24, 1896, he perfected an appeal to this court; but on July 7, 1896, and before the filing of the-transcript, he was removed as administrator by an order of the county court, and John F. Miller appointed his successor, to whom letters of administration were regularly issued, notwithstanding which Hamaker filed a transcript on appeal in this court, on the 21st of September following. In January, 1897, Miller as administrator of the estate, appeared by an attorney, and moved to dismiss the appeal, disclaiming any desire to further prosecute the matter ; and, at the same time the respondent, Knight, filed a similar motion, on the ground that Hamaker had ceased to have any interest in the subject matter of the litigation. Both these motions were on January 11, 1897, overruled pro forma, but with permission to the respondent and Miller to renew them on the final hearing of the case, which was done accordingly.

1. In our opinion, the motion of Miller must be allowed. An administrator derives his authority to act exclusively from the appointment of the county court, and when such authority is withdrawn or revoked his power to act for the estate must necessarily cease. He is but the manager of an estate, under the orders of the court and the provisions of the statute, and his authority is derived solely from that source. When it is revoked, he has no right to longer participate therein, or to control any of the proceedings in which it is interested. And as it is clear that a party cannot prosecute an appeal from a judgment unless he is in some way aggreived by it, either personally or in some representative capacity, it necessarily follows that when Hamaker was removed as administrator, and Miller appointed in his place, the right to control farther proceedings on the appeal vested in Miller, as the representative of the estate ; and, if he does not desire to proceed any further in the matter, Hamaker ought not to be heard to object. The motion of Miller to dismiss the appeal is therefore sustained.

Dismissed .