(96 Wash. 46)

[1] The facts stated in the complaint are

1917.)

April 27, 1. EXECUTORS AND ADMINISTRATORS 109(1) -MANAGEMENT OF ESTATE-NECESSARY EXPENSES-HARVESTING of Crops.

Under Rem. & Bal. Code, § 1534, providing that the executor or administrator shall take into his possession all the estate, real and personal, and section 1547, providing that he shall be allowed all necessary expenses in the care, management, and settlement of the estate and for his services such fees as the law provides, etc., as the cultivation of growing crops and harvesting, conservation, and marketing of matured crops differs from keeping a business venture going, and as an administrator would be liable for neglect and nonfeasance should he permit crops growing upon the estate to go to waste and be lost, expenses incurred by an administrator for apple boxes necessary for the harvesting and marketing of a crop of apples grown on the estate was an expense for which the administrator had power to bind the estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 435.] 2. EXECUTORS AND ADMINISTRATORS 433ACTIONS-DEFENSES-FAILURE TO INCLUDE CLAIM IN FINAL ACCOUNT.

In an action against an administrator de bonis non on a claim properly incurred by the former administrator in the management of the estate, it was not material that the former administrator had failed to include the expense or claim in his final account rendered to his suc cessor, since the creditor could not compel him to do so, except upon a hearing after rejection

of the claim.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1692-1697.]

Department 2. Appeal from Superior Court, Chelan County; Wm. A. Grimshaw, Judge.

Action by the Lamb Davis Lumber Company against E. F. Stowell, administrator de bonis non of the estate of Maude E. French, deceased, and others. From a judgment sustaining a demurrer to the complaint and dismissing the action, the plaintiff appeals. Reversed and remanded, with instructions to overrule the demurrer and reinstate the cause, and for further proceedings consistent with the opinion.

W. F. Whitney, of Wenatchee, for appellant. C. F. Wallace, of Cashmere, and Hughes, Sumner & Adams, of Wenatchee, for respondents, and E. F. Stowell.

on June 1, 1911, and on December 27, 1911, her husband, J. H. French, was appointed and qualified as administrator of her estate. He continued so to act until on or about March 30, 1915. The estate consisted of an apple orchard in full bearing. On March 12, 1915, French was, by order of court, removed, and Stowell was appointed administrator de bonis non. On March 30, 1915, letters of administration de bonis non were issued to Stowell, and he forthwith qualified as such, and proceeded to administer the estate. Between August 10 and October 30, 1914, upon the request of J. H. French as administrator, appellant sold and delivered to the estate approximately 7,350 apple boxes for which the administrator, as such and for and on behalf and for the benefit of the estate, agreed to pay $803, no part of which was ever paid. These apple boxes were used by the administrator during the fall of 1914 to harvest and market the apple crop of the estate, and without them the crop could not have been harvested and marketed, and the entire apple crop would have been lost to the estate and no returns or proceeds derived therefrom. After French was removed and Stowell was appointed and had qualified as administrator de bonis non, appellant presented its verified claim against the estate to Stowell, who rejected it. This suit was thereupon brought to establish the claim against the estate as though it had been allowed by the administrator de bonis non, and asking that he be required to pay the claim in due course as other claims against the estate were paid. The administrator de bonis non rejected the claim, on the sole ground that the prior administrator had no authority in law to contract such obligation on behalf of the estate and could not thereby bind the estate. The statutes provide:

"Has an administrator the power to bind the estate for necessary supplies purchased by him in his representative capacity, which supplies were necessary to the preservation of the estate and without which the estate would suffer loss and damage?"

therein whenever the same is presented by the plaintiff or his attorney, and does not now intend to and never has, nor will, hear' or 'try' any other question whatever therein. That instead of plaintiff having no other plain, speedy or adequate remedy excepting a writ of this court prohibiting respondent from signing said order of confirmation, the plaintiff has a full, complete and speedy remedy, namely, the presenting of an order of confirmation of sale in said cause, which will be signed upon presentation."

"In the case of Talens against Anderson, the court denied the motion for a change of venue conditionally, on no other question excepting formal confirmation of sale appearing to be passed upon in said action, and caused to be entered on the journal of the court of the proceedings for February 19, 1917, the following order therein: 'M. Talens v. T. R. Anderson.

Motion for change of judges was argued under the rule by Lee C. Delle, attorney for plaintiff. Motion denied on the ground the cause has been tried on its merits, and there are no questions remaining to be passed upon involving discre tionary action, and the motion is frivolous and capricious; that if any such question shall arise, said action shall be forthwith transferred to department 2 of the court.'

(2) That on the 5th day of March, 1917, there appeared on the motion docket of department No. 1, over which the respondent was then pre siding, said case of M. Talens v. T. R. Anderson. Upon the calling of the motion docket, the following order was made in said cause and entered upon the journal of the court: 'M. Talens v. T. R. Anderson. Motion for Confirmation. There being no objection filed or presented and the proceedings therein appearing to be regular and according to the practice of the court, it is ordered that said sale be confirmed, and that formal order confirming the same will be signed upon presentation to the court at any of its regular daily sessions, subject only to the alternative writ of prohibition issued by the Supreme Court in the case of State ex rel. M. Talens v. George B. Holden, Judge.'

(3) That the said cause of M. Talens v. T. R. Anderson has been 'heard' or 'tried,' judgment and decree entered for plaintiff by default, for the full amount of his claim, sheriff's sale had and returned, more than ten days elapsed since the return of sale filed in the clerk's office, no objections filed or presented, and all proceedings therein being regular and according to the practices of the court, there remains nothing further to be done in said action excepting to present a formal order confirming the sheriff's sale in said cause, which order respondent is now and at all times has been ready and willing to sign, and has at all times so informed the attorney for the plaintiff, and that if any other question shall arise in said cause to be passed upon by the court, said cause will be, conformably to the order of February 19, 1917, entered upon the journal of the court, forthwith transferred to department No. 2 of the superior court for Yakima county, Wash.

were filed thereto, as a mere ministerial act, not involving discretionary action, and that in sitting to hear the motion to confirm he was not sitting "to hear or try an action or proceeding" within the meaning of the statute before cited, concluding therefrom that the affidavit of prejudice and the motion to transfer the hearing was necessarily frivolous and capricious, and not such an affidavit and motion as he was required to regard.

nature of a confirmation proceeding had upon The view taken by the learned judge of the a sale of real property pursuant to a decree of foreclosure finds support in the language used by this court in the case of State ex rel. Steele v. N. W. & P. H. Bank, 18 Wash. 118, 50 Pac. 1023. In that case it was said that under our practice a foreclosure sale is not, strictly speaking, a judicial sale, and in so far as confirmation is required, the proceeding partakes more of the nature of ministerial proceedings than of judicial action, although it was elsewhere stated in the opinion that "the effect of the order of confirmation is to conclusively establish the regularity of the proceedings concerning such sale." In the later case of Otis Bros. & Co. v. Nash, 26 Wash, 39, 66 Pac. 111, a wider view of such an order was taken. The case was on appeal from an order setting aside an execution levy and sale because of irregularities in the sale after an order of confirmation had been entered. Judge Hadley, pronouncing the opinion of the court, used this language:

"If any such irregularity existed in this case, it should have been suggested by way of objec tion to the confirmation. This objec tion was made for the first time in the amended petition. All these irregularities were cured by the order of confirmation. Having regard to the stability of real estate titles, an order confirming a sheriff's sale must be held to be more than a mere formal order. It is the solemn declaration of the court that the sale has been regularly and legally made, and those who would be in the position to avoid the conse quences of such an order must pursue the method outlined by statute by making objections in time, so that the entry of the order may be prevented, or, if entered, may be reviewed by the appellate court if desired."

This language was quoted with approval in the similar case of Terry v. Furth, 40 Wash. 493, 82 Pac. 882, where the same view

Pac. 833; Strand v. Griffith, 63 Wash. 334, 115 Pac. 512; McHugh v. Conner, 68 Wash. 229, 122 Pac. 1018.

[1, 2] There is some confusion in our cases as to the questions that may be considered on a motion to confirm an execution sale (Scott v. Guiberson, 72 Wash. 36, 129 Pac. 886); but they all agree that an order of confirmation is conclusive of the regularity of the sale itself, and precludes any subsequent inquiry as to such regularity. The act of confirmation is therefore something more than a mere formal or ministerial act. It clearly involves judicial discretion when objections thereto are made, and when the effect of the order is considered, it must do so we think even though standing unopposed. Clearly, the court may in such a case inquire into the regularity of the proceedings and refuse confirmation if he finds that the prescribed method of making the sale has not been substantially pursued. It is as much in the nature of a judicial act therefore as is the act of entering a judgment or decree in an action where the defendant duly served made default, and certainly no one will contend that the entry of a default judgment is either a formal or ministerial act, or that a Judge sitting to hear such an application would not be sitting to hear or try an action or proceeding.

The statute provides that no judge of a superior court of the state of Washington shall sit to hear or try an action or proceeding when it shall be established that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in the cause; and provides that such prejudice may be established by motion supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes he cannot, have a fair and impartial trial before such judge. The statute was intended to do away with the necessity, existing under prior statutes, of establishing actual bias or prejudice on the part of the sitting judge in order to obtain a trial before another judge. The statute permits of no ulterior inquiry; it is enough to make timely the affidavit and motion, and however much the judge moved against may feel and know that the charge is unwarranted, he may not avoid the effect of the proceeding by holding it to be frivolous or capricious. As we said in State ex rel. O'Phelan v. Superior Court, 88 Wash. 669, 153 Pac. 1078:

ernor of the state to send a judge to try the case; and (d) if the convenience of witnesses or the ends of justice will not be interfered with, and the action is of such a character that a change of venue may be ordered, he may send the case for trial to the most convenient county."

[3] The affidavit of prejudice and motion in the present case was filed as soon as the relator knew that Judge Holden would preside over the department of the court in which his cause was pending, and was thus timely. State ex rel. Jones v. Gay, 65 Wash. 629, 118 Pac. 830; State ex rel. Beeler v. Smith, 76 Wash. 460, 136 Pac. 678.

It follows, we think, that the court erred in denying the motion to transfer the cause. Let the peremptory writ issue.

ELLIS, C. J., and MOUNT, PARKER, and HOLCOMB, JJ., concur.

(96 Wash. 1)

STATE ex rel. GEISSLER et al. v. TRUAX, Superior Court Judge. (No. 14004.) (Supreme Court of Washington. April 18, 1917.)

1.

DEPOSITIONS 19-COMMISSION TO TAKE ORAL OR WRITTEN INTERROGATORIES STATUTE-DISCRETION Of Court.

-

Under Rem. Code 1915, § 1240, authorizing a commission to take depositions, and providing that depositions may be taken upon written interrogatories or oral questions, or partly upon oral and partly upon written interrogatories, the duty of determining the mode of examination devolves upon the court, and is to be determined from the facts presented at the hearing, subject to review only for manifest abuse of discretion. [Ed. Note.-For other cases, see Depositions, Cent. Dig. § 30.] 2. DEPOSITIONS 24-ORAL OR WRITTEN INTERROGATORIES-STATUTE-CONSTRUCTION.

Even where statutes permit an oral examination under a commission, that method is not of necessity, where it is apparent that an exfavored, and will be allowed only in clear cases amination by interrogatories and cross-interrogatories will be inadequate.

[Ed. Note. For other cases, see Depositions, Cent. Dig. § 35.]

3. MANDAMUS 40-PROCEEDINGS OF COURTS -DEPOSITIONS.

Where matters occurring at hearing of an application for a commission to take a deposition are not before this court and it is not shown by application or affidavit filed here that knowledge tories framed in advance of examination, it canof witness could not be elicited by interroganot be said that judge abused his discretion in requiring written interrogatories to be prepared before issuing a commission, and mandamus will not lie to compel him to issue a commission allowing examination by oral questions. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 85.]

Holcomb, J., dissenting.