Kerrigan

Plaintiff, administratrix, brought this action for $25,000 damages, alleged to have been sustained by her as such administratrix by reason of the death of her intestate, which death, it is alleged, was caused by the neglect of defendant, in whose service he was engaged at the time of his death.

Plaintiff obtained verdict and judgment for one thousand dollars, and defendant has appealed from the judgment and an order denying its motion for a new trial.

The complaint is entirely destitute of allegation of the existence of any heir of decedent, or allegation of any damage to any heir, the only allegation of damage being that as to the damage to the administratrix. It is settled in this state that an action of this character cannot be maintained by the personal representative of the deceased if there is no heir, and that, in order to state a cause of action, it is essential to allege in the complaint the existence of heirs. (Webster v. Norwegian Mining Co., 137 Cal. 399 .) No demurrer was interposed to the complaint in the court below, and the question as to the sufficiency of this complaint was not suggested until the ca'se had reached this court on appeal. As a matter of fact, the…