Miller v. Superior Court

The petitioner asks for a writ of prohibition to enjoin the respondent superior court from proceeding further in an action by which Frank M. Kelsey, as special administrator of the estate of Mary Moore Miller, deceased, brought suit to recover a safe and its contents from Jared H. Miller and Cecil A. Miller. The action sought to be enjoined is an ordinary claim and delivery suit. The complaint therein alleges that the safe and its contents were the property of Mary Moore Miller during her lifetime, and were then in the possession of petitioner herein, and that since her death he has continued to hold the same from the plaintiff in that action.

[1] It is one of the duties of the special administrator to recover and take charge of the property of an estate which he represents and he has full authority to maintain any action necessary to the performance of this duty. (Code Civ. Proc., secs. 1415, 1582; In re Welch, 106 Cal. 427 [39 P. 805].)

The petition for the writ is denied.

Finlayson, P. J., and Works, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 11, 1922.

All the Justices present concurred.