Veile v. Irwin

Beck, J. (After stating the facts.) We are of the opinion that the court below properly held that the petition should be dismissed on the ground that it stated no cause of action against the defendant. The petition does not show, except inferentially, that there is money or accrued interest in the hands of the defendant, nor does it show (even if, considered altogether, the allegations amount to the charge that there is accrued interest in the hands of the executor) that there is any abuse of discretion on his part in failing to pay over the same to petitioner; and it is not insisted by counsel for plaintiff in error that this petition could be treated as a proceeding to remove Irwin as execrrtor and trustee under the will for any acts of misfeasance or abuse of his office. And we do not think it was within the jurisdiction of the court to compel the executor as trustee to invest the funds that came into his hands under this will, if there were any, in any particular form of securities or realty. And as there is no cause entitling the plaintiff to relief against the [796] defendant stated in the instant case, and no other case pending or intended is set forth, even in the most general way, which the facts sought to be discovered could be used to support, the petition could not be retained as proceedings in the nature of a bill for discovery alone. Civil Code, §39,46; also 6 Enc. Pl. & Pr. 766 et seq., and cit. Judgment affirmed. All the Justices concur.