Estate of Ryker

California Court of Appeal Jan 10, 1950 No. Civ. No. 14270Published

Before: Ward

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Holding. The court held that a writ of certiorari cannot be used as a substitute for an appeal to challenge an order from which an appeal was available, nor can it be used to review the merits of a trial court's discretionary denial of a motion to vacate an order.

Issues

Whether a writ of certiorari may be used to review an order denying a motion to vacate an appealable order when the petitioner failed to appeal the original order.
Whether the trial court abused its discretion in denying a motion under Code of Civil Procedure section 473 to amend an order confirming a sale of real estate.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Certiorari cannot be substituted for an appeal; nor can it be used as a mere writ of error for the correction of mistakes, either in law or fact, committed by the inferior tribunal within the limits of its jurisdiction”

“In the present proceeding there was no excess of jurisdiction, and there was a right of appeal.”

“We cannot say, as a matter of law, that the trial court abused its discretion in denying the motion.”

95 Cal.App.2d 507 (1950) Estate of HAZEL RYKER, Deceased. MAY F. DUNHAM, as Administratrix, etc., et al., Petitioners,

SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Civ. No. 14270. California Court of Appeals. First Dist., Div. One.

Jan. 10, 1950. Robert E. Hatch, Norman S. Stimmel and Emmet B. Hayes for Petitioners.

A. J. Zirpoli for Respondents.

WARD, J.

A writ of certiorari was issued to review the action of the probate court denying a motion made under section 473 of the Code of Civil Procedure to vacate an order made confirming the sale of real estate. (Prob. Code, 755.) An appeal was taken from the order denying the motion made under the aforesaid section 473, which was dismissed by the appellate court on the ground that the order of denial was not appealable. (Prob. Code, 1240; Estate of Ryker, 92 Cal.App.2d 162 [206 P.2d 406].) [508]

It was stipulated that the record on appeal (92 Cal.App.2d 162) could be used by this court in determining the merits of the petition for certiorari. The clerk's transcript on the appeal sets forth a notice of intention filed in the Superior Court of the City and County of San Francisco to sell "to the highest and best bidder" certain real estate in the estate of Hazel Ryker (the identical property described in the Code of Civil Procedure, section 473, proceeding). The notice is signed by the administratrix, May F. Dunham, and requires that all bids and offers should be submitted to the administratrix at a designated room in Mills Tower, San Francisco (4), California. The attorney representing the administratrix maintains law offices in Mills Tower. The report of sale and petition for confirmation are verified by the attorney for the administratrix allegedly "for the reason that said petitioner is outside the City and County of San Francisco," and avers that he "knows the contents" of the petition. The report of sale and petition for confirmation set forth that: "Said sale was accomplished through Paul R. Weisenberger and by reason thereof said Paul R. Weisenberger is entitled to a 5% real estate commission in the amount of $837.50. Wherefore, petitioner prays that this report be accepted and said sale be confirmed; that petitioner be authorized and directed to execute a deed of said property to said purchaser upon the payment by him of the unpaid balance due under said contract; that petitioner be authorized and directed to pay the sum of $837.50 as real estate commission on said sale to Paul R. Weisenberger, and for such other order as may be proper." This allegation was made positively and is not on information and belief.

Estate of Ryker

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WARD, J.

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THE COURT.

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