Efird v. C. H. Antrim Co.

MUSSELL, J.

Respondents, licensed real estate brokers, under authority of a written listing, procured a purchaser for real and personal property in Fresno County belonging to the estate of Clyde Efird, deceased. The executor, Security-First National Bank of Los Angeles, filed in the superior court an original and amended return, account of sale and petition for confirmation. No application was made by the executor in its return and petition for the allowance of any commissions to respondent brokers for their services. At the hearing on the petition for confirmation of sale, held on March 1, 1954, Calvin Rodeck Antrim, one of the respondents, was present in court and heard an objection being made by the attorney for the surviving wife of the decedent to the allowance of any realtors’ commissions on the ground that the executor had failed to include a request for such allowance in its petition. Mr. Antrim had relied upon the executor to include a request for the said allowance in its petition and was surprised at the objection. He was not represented by counsel and before he could secure information as to the procedure for protecting his rights, the court confirmed the sale without allowing brokers’ commissions. Respondents then, on April 28, 1954, filed a verified petition in the probate proceedings alleging that the sale was confirmed without allowing petitioners the commissions to which they were entitled and that through their surprise, mistake, inadvertence and excusable neglect they failed to apply for their commissions or object to the confirmation without the allowance thereof. Petitioners’ prayer was (1) That they be relieved of their default in fail

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ing to object to the entry of the order confirming the sale; (2) That the order of confirmation of the sale be reopened solely for the purpose of permitting petitioners themselves to apply for and secure an order fixing and allowing appropriate realtors’ commissions; and (3) That the court then fix commissions and direct the executor to pay them to petitioners. This petition came on regularly for hearing on May 10,1954, and after a full hearing thereon, including objections to the petition filed by the surviving widow of the deceased, the court entered its order granting the relief prayed for in the petition. The widow, Gertrude M. Efird, appeals from the last mentioned order.

Appellant first argues that respondents are not parties to the proceedings herein so as to entitle them to petition the court for relief under section 473 of the Code of Civil Procedure, or otherwise, particularly after the entry of the order confirming the sale in the probate proceedings. However, this contention was considered and rejected in