Estate of Noonan

113 Cal.App.2d 899 (1952) Estate of JOHN D. NOONAN, Deceased. ELLEN MURPHY et al., Appellants,

v.

PHIL C. KATZ, as Public Administrator etc., et al., Respondents.

Civ. No. 15503. California Court of Appeals. First Dist., Div. Two.

Oct. 30, 1952. Andrew F. Burke for Appellants.

Lamson, Jordan & Walsh for Respondents.

DOOLING, J.

Respondents move to dismiss an appeal from an order entered on November 8, 1951, denying a petition for the settlement and certification of a statement of the evidence for use on appeal in lieu of a reporter's transcript.

[1] The clerk's certificate shows that in a proceeding to administer the estate of one Noonan, deceased, a decree of final distribution was entered and appellants filed a notice of appeal therefrom. In proper time appellants filed a notice and request for a reporter's transcript "including therein the statement that they intended to proceed by settled statement in the event that the hearing on the settlement of the account and the petition for final distribution had not been reported or that the reporter's transcript could not be prepared and filed within the time required by law." On September 6, 1951, notice of completion of a reporter's transcript was given to counsel, no request for correction was filed as provided by rule 8(a), Rules on Appeal, and the reporter's [900] certified transcript has been transmitted to the clerk of this court.

On September 18, 1951, appellants filed a proposed statement of evidence on appeal and a request for settlement and certification of this statement for use on appeal in lieu of the reporter's transcript. The petition for settlement and certification of this proposed statement was denied on November 8, 1951, and notice of appeal from this order of November 8 was filed on January 7, 1952. It is this appeal which respondents move to dismiss. The motion is made on the ground that an order refusing to settle a record on appeal is not included in the orders in probate proceedings from which an appeal is authorized to be taken by section 1240, Probate Code.