Estate of Treadwell

Harrison, J.

Motion to recall the remittitur. When this cause was called for argument, in its order upon the calendar, August 19, 1895, there was no appearance on behalf of the appellant, and the counsel for the respondent then stated to the court that, since the appeal was taken, the oldest of the minors had attained majority; and he also presented a certified copy of an order settling the account of the appellant as guardian of the estate of said minor and discharging him from his trust, and also a certified copy of another order of said court discharging the appellant as guardian of the other minors, made upon his own application—both of said orders having been made subsequent to the taking of the appeal herein, and submitted the matter to the court for such order as should be proper. Thereupon the court made an order that, as it appeared that all matters involved in the appeal were disposed of, the appeal be dismissed. September 20th the remittitur upon this order was filed in the superior court, and on the 18th of October a notice on behalf of the appellant was given to the attorneys for the respondent of a motion to set aside the order dismissing the appeal and to recall the remittitur, upon the ground that said order had been improvidently granted upon a false suggestion; and under a mistake as to the facts of the case. At the hearing thereon the appellant based his motion upon the ground that no notice of a motion to dismiss the appeal had been previously served upon him, but made no showing of any false suggestion to the court or of any mistake as to the facts of the case. In support of the order the respondent, in addition to the above certified copies, presented a certified copy of a petition made by the appellant to the superior court subsequent to the taking by him of the appeal herein, in which the appellant stated that on the 13th of August, 1894, he resigned his trust as guardian of the minors, and that his resignation was duly and regularly accepted by the court.

The order from which the appeal herein was taken was made July 31, 1894, and was an order revoking and annulling a previous order appointing the appellant guardian of the minors. The resignation by the appellant of his office as such guardian, subsequent to the order revoking his letters, and the acceptance of such resignation by the court, together with the settlement of his account, operated as an acquiescence by him in the previous order of the court annulling his letters, and precluded him from assigning any error in such order, and rendered the order dismissing the appeal proper.

The motion is denied.

McFarland, J., G-aroutte, J., Van Fleet, J., Temple, J., and Henshaw, J., concurred.