Walther v. Stefani

E. F. WALTHER et al., Respondents, v. FRED A. STEFANI, as Executor etc., et al., Appellants.

COUNSEL

Franklin A. Dill, M. Mitchell Bourquin and Frank L. Murphy for Appellant.

Oscar C. Parkinson for Respondents.

OPINION

THE COURT.

The executor of the last will and testament of Virgilio Stefani, deceased, one of the appellants, has filed in this court a motion for an order removing appellants Frank L. Murphy and C. Robinson from any control over the litigation in the above matter and for an order granting appellant Fred A. Stefani as an individual and as an executor of the last will and testament of Virgilio Stefani, deceased, full authority to effect a compromise of this litigation if possible.

The record on appeal shows that respondent filed an action against appellants praying that a certain promissory note payable to Virgilio Stefani and his wife and the deed of trust securing same, in which deed of trust appellants Murphy and Robinson were named as trustees, be decreed to be held in trust for respondent. From the judgment in favor of plaintiff and respondent all of the defendants appealed. [118 Cal. App. 2d 271]

[1] Appellant executor has cited no authority that would justify the granting of such a motion as is here made, and we know of none. Appellants Murphy and Robinson were parties in the action and were included in the judgment. They were also included in the joint brief filed by all appellants. It is not suggested that they did not have the right to appeal. Under such circumstances we are unable to understand upon what basis we could properly order said appellants removed from any control of the litigation.

The motion is denied.