Brind

Action by plaintiff, as administratrix with the will annexed, to recover possession of certain lands as property belonging to the testate’s' estate. Defendants had judgment, from which an appeal was taken. (Sacramento No. 418.) Judgment was affirmed. (Opinion filed April 21, 1898, 15 Cal. Dec. 162.) This present appeal is from the order denying plaintiff’s motion for a new trial. The facts in the ease and a general statement of the pleadings and findings are given in the opinion filed in the appeal from the judgment already referred to. As matter of law, the lower court found plaintiff’s cause of action barred by the statute of limitations and that plaintiff is estopped from maintaining the action.

Plaintiff was not entitled to judgment on the pleadings. The answer pleaded the statute of limitations and an estoppel by reason of the former decision of this court between the same parties. Even if the statute of limitations was not a good plea (which we think it was), defendants were entitled to be heard on the plea of estoppel by the judgment in Gregory v. Gregory, 102 Cal. 50 . In Sacramento No. 418 it did not appear that any motion for a new trial was ever made or passed upon,…