Elizalde

Action upon ah administrator’s bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.

It is made to appear in the record that one Craves was appointed administrator of the estate of Elizalde on the twentieth day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with $5,696, and credited him with certain payments not disputed, together with other payments the subject of controversy upon this appeal—one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney’s fees to one Leme, and for expenses and…

I concur in the order of reversal, and also in much of the reasoning of the opinion of Mr. Justice Allen. But the reversal should, I think, be placed on the broader principle, established by the decisions of the supreme court, that a suit cannot be maintained against the sureties on an administrator’s bond until there has been a settlement of his account, either in the probate proceedings under section 1629 of the Code of Civil Procedure, or by a bill in equity brought for that purpose. (Graff v. Mesmer, 52 Cal. 636 ; Chaquette v. Ortet, 60 Cal. 594 ; Weihe v. Statham, 67 Cal. 84 , [ 7 Pac. 143 ]; Reither v. Murdock, 135 Cal. 197 , [ 67 Pac. 784 ]; Cook v. Ceas, 143 Cal. 225 , [ 77 Pac. 65 ].)

In such a bill brought against the administrator the sureties may, perhaps, be joined (Chaquette v. Ortet, supra); and I can see no objection to this course. But in the present case the administratrix of the deceased Graves was not made a party; and, indeed, the demand of the defendants by proper supplemental pleadings to bring her in as a defendant was denied by the court.

This error may be cured by a proper order requiring her to be brought in as a defendant (Code Civ. Proc., sec. 389);…