BANK OF AMERICA v. SUPERIOR COURT OF SAN FRANCISCO (1941)

District Court of Appeal, First District, Division 1, California.

BANK OF AMERICA N. T. & S. A. v. SUPERIOR COURT OF SAN FRANCISCO.

Civil No. 11937.

Decided: October 17, 1941

Louis Ferrari, Keyes & Erskine, and Bacigalupi, Elkus & Salinger, all of San Francisco, for petitioner. Francis W. Murphy, of San Francisco, for respondent.

The petition for the issuance of an alternative writ of mandate is denied upon the following grounds: (1) That section 583 of the Code of Civil Procedure upon which the petition is based does not apply to and may not be invoked for the dismissal of exceptions filed to the final account of an executor or administrator; (2) that in any event under the authorities cited by respondent in opposition to the issuance of the writ, the superior court was justified in holding as it did that, even though the provisions of said section 583 could be so extended as to apply to such exceptions, the series of letters written by petitioner's attorneys to respondent's attorney, and which are attached to and made part of the petition, constituted a written stipulation waiving the rights of the executor, if any it had, to invoke the benefit of the provisions of said section.

PER CURIAM.

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