
    IN THE MATTER OF THE ESTATE OF C. AKANA, deceased.
    Motion bor Rehearing.
    Submitted June 20, 1898.
    Decided August 2, 1898.
    Judd, O.J., Erear and "Whiting, JJ.
    Rehearing Denied.
   OPINION OF THE COURT BY

WHITING, J.

A decision was rendered in this canse by the Supreme Court o:. May 9, 1898, and now the Administrator Wilson moves for a rehearing upon the following grounds:

1. That the decision of this Court directing that the accounts filed in said "matter are to be corrected by refunding to one Akina, out of the assets of said estate, the sum of $178.50, was rendered under a mistake and misapprehension as to the facts of the case apparent in the record.

2. That the said decision affords relief to said Akina which the facts of the case do not warrant and works a hardship on the creditors of said estate as appears by the affidavit of W. E. Wilson hereto attached and made a part hereof.

3. That an error has been inadvertently committed in directing said sum of $178.50 to be paid to Akina because “the claimants (Hyman Bros.) held Akina personally responsible, obtained judgment against him and levied execution upon his property” therefor, the facts in regard to that matter being as follows: that Hyman Bros, did sue Akina and obtain judgment against him and levy execution upon his property and sell the same; that the amount realized from such sale under execution was $20; that under the order of the Probate Court, said sum of $20; was refunded to Akina out of the assets of said estate by W. P. Wilson; that Hyman Bros, have filed their said claim as a claim against said estate with W. P. Wilson, and have been paid and have shared with the other creditors, a thirty per cent, dividend thereon; that no part of the claim of Hyman Bros, for $178.50 has ever been paid, by Akina but on the contrary, part of the same has been paid out of the assets of said estate, and that Hyman Bros, ever since the time aforesaid has been and now are creditors of said estate. •

J. A. Magoon and II. D. Silliman for Akina.

W. A. Henslmll for the Creditors and Administrator Wilson.

The attention of-this Court was not called to the facts now presented as a ground for rehearing viz: that the present administrator had refunded to Akina $20 which Hyman Bros, had collected on execution, nor to the fact that Hyman Bros had filed their claim with Administrator Wilson and received a dividend out of the estate. This was not the mistake or misapprehension of this Court and is not ground for rehearing.

The record of the Circuit Court has been presented to us showing that further proceedings have been had in regard to this matter after our decision, wherein it appears that a further contest of this claim was made by the administrator and the statute of limitations set up, which contest was after hearing decided against the administrator, and an order was made that the administrator pay to Akina $178.50 the amount of Hyman Bros, claim, and from that order the administrator has appealed. The course pursued by the administrator is sufficient in itself to warrant this Court in refusing a rehearing.

The motion is denied.  