*214ON APPLICATION FOR REHEARING.
FRICK, J.Mr. James Ingebretsen, one of appellant’s counsel, has filed a petition for rehearing, in which two grounds are stated why a rehearing should be granted, namely:
“(1) That the court apparently failed to note the precise terms of the decree rendered by Judge Lewis in the Weyant-Morgan case; (2)' that the court omitted to consider the authorities upon the legal effect of this decree.”
In concluding a somewhat vigorous argument in support of his petition counsel says:
“In view of our blamelessness, and that the Weyants have recovered a large part of the estate, and that part of this judgment is for items such as rent for the property after distribution, and that we have parted with such security as we had and gained nothing for ourselves, and that no reserve or other precaution exists for such a liability, I had hoped and still hope that the court might kindly consider and follow the conclusion reached in the several similar cases we have cited, especially since there cannot be found in all the world a similar case in which the surety has been held.”
In this connection he also complains that we did not refer to some of the cases cited by him, and for that reason seems persuaded that we did not consider them.
In the opinion the writer explicitly stated the reason why more of the numerous cases referred to by counsel were not reviewed. In a case like this, where so many eases ¿re referred to, which have only a remote bearing upon the principal question presented, and in which the controlling facts clearly differ from the facts stated in the cited cases, it is impracticable, if not impossible, to distinguish the numerous cases and set forth the reasons at length why they are not controlling. The writer took special pains to set forth at least the controlling facts in detail in the opinion. No fault is found with the statement as made. In formulating the conclusion he again attempted to state them as explicitly as possible under the circumstances. The facts and the reasons for the conclusion reached, as well as the lawr deemed applicable *215to the peculiar features of this case, were all thoroughly considered by all the members of this court, not only once, but several times, and, after doing so, the conclusion was, and still is, unanimous that no other result save the one announced in the opinion is permissible. In view, however, that counsel insists that our conclusion is contrary to the cases he cited in his orignl bref, we here cite all that he nw relies on in his petition for rehearing, namely: Silva v. Santos, 138 Cal. 536, 71 Pac. 703; Curtis v. Schell, 129 Cal. 208, 61 Pac. 951, 79 Am. St. Rep. 107; Estate of Hudson, 63 Cal. 454; Estate of Walker, 160 Cal. 547, 117 Pac. 510, 36 L. R. A. (N. S.) 89; Evans v. Evans (Ala.) 76 South. 95; Sohler v. Sohler, 135 Cal. 323, 67 Pac. 282, 87 Am. St. Rep. 98; Estate of Leavens, 65 Wis. 440, 27 N. W. 324; Turner v. Cole, 24 Ala. 364. We refer to those cases, however, only so that the reader may, if he so desires, examine them, and not for the purpose of now reviewing them.
In this connection it is, however, only fair to state that we cannot agree with counsel’s contention that in the foregoing cases the law is stated that where a court adjudges that a defaulting administrator holds the property which is still in his possession, and which was wrongfully converted by him while acting as administrator, in trust for the heir or creditor of the estate, as the case may be, that, under facts and circumstances like those in the case at bar, the surety on his bond may not be held liable for the value of the property so wrongfully converted and which cannot-be recovered from the administrator. That is the crux of this case. Counsel entirely ignores or overlooks the all-potent fact ever present in this case, that the respondents at no time were brought into court. He assumes that, because the notice published by the administratrix in the name of Fuller was sufficient to bring those who transacted business with the deceased and who knew him only by that name into court, therefore it was sufficient to bring in the respondents. Not so. The respondents were never brought within the jurisdiction of the court, and hence not into the probate proceedings, and therefore any decree rendered in those proceedings, so far as they were con-crned, was a mere nullity.
*216That proposition is illustrated in the case of In re Killian, 172 N. Y. 547, 65 N. E. 561, 63 L. R. A. 95, where a party interested in an estate was not served with notice, and it was there held that the decree in the probate proceeding had no binding force as to him. The foregoing proposition is, however, so elementary that no citation of authority should be required. The following cases also clearly support the conclusion reached in the principal opinion, namely: Fisher v. Wood et al., 65 Tex. 199; Money v. Gasserly, 134 Mich. 252, 96 N. W. 478. In the Texas case it is expressly held that a defaulting executor may be charged as trustee, and after the property found in his hands is exhausted “the plaintiffs will have to look to the executor and his bondsmen.” Why not? What is an administrator’s bond given for, if it is not to protect the heir against the wrongful official acts of the administrator in administering the estate ? In view that in this case the administratrix practiced fraud upon the court, upon the surety on her bond, and upon the heirs alike, does not change the rule, although her wrongful acts fall with peculiar severity upon the surety. The surety vouched for her official conduct, and, however innocent, must nevertheless bear the burden as against the heirs, who are likewise innocent, and for whose protection the law required the giving of a bond.
The contention that we quoted the conclusion of law found in the second case, instead of the one found in the first one, is too trivial to require special comment. The conclusion of law we quoted in the opinion was inevitable, in view of the facts found in both cases and therefore, although counsel’s contention be conceded to be correct, it has no bearing upon the result.
Wie are still of the opinion that the conclusion reached is sound, and hence should prevail. The petition for a rehearing is therefore denied.
CORFMAN, WEBER, GIDEON, and THURMAN, JJ., concur.