Estate of Raymond

WOOD, J.

A petition was filed by appellant on July 22, 1938, for the probate of a will alleged to have been executed by Louie E. Raymond, deceased, and to have been destroyed by Grace Raymond Peters. Written opposition to the petition for probate of the alleged lost will was filed by Grace Raymond Peters. Mary S. Raymond and others filed an answer to the written opposition of Grace Raymond Peters but a demurrer to their answer was sustained without leave to amend. Appellant also filed an answer to the written opposition of Mrs. Peters. The hearing on appellant’s petition was continued to February 8, 1939, at which time the court commenced to receive evidence on the issues presented. On March 15, 1939, appellant filed with the clerk of the court a written notice to enter the dismissal of his petition for the probate of the destroyed will. On March 20, 1939, the court made the following order: “Hearing resumed from March 16, 1939, all parties present as heretofore. Argument resumed and concluded and the court finds that the filing of a dismissal of the petition of Frederick R. Ahlborn with the clerk was ineffectual for any purpose and that the petition to probate the alleged destroyed will of Louie E. Raymond fails to meet the requirements of section 350 of the Probate Code and for that reason the probate of the will is denied.” On April 20, 1939, the court made and filed findings of fact and conclusions of law and entered a formal order denying appellant’s petition. Appeals have been taken from the orders of March 20, 1939, and April 20, 1939.

By his notice of dismissal, which was addressed to the clerk of the court, appellant unquestionably sought to dismiss his petition under the provisions of subdivision 1 of section 581 of the Code of Civil Procedure. This section contains five different subdivisions providing the conditions under which civil actions may be dismissed and the methods for bringing about the dismissals. The first part of the section reads as follows: “An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff, by written request to the clerk, filed with the papers in the case, or by oral or written request to the justice where there is no clerk, at any timé before the trial, upon payment of the costs of the clerk or justice; provided that a counterclaim has

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not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant. If a provisional remedy has been allowed, the undertaking shall upon such dismissal be delivered by the clerk or justice of the peace to the defendant wrho may have his action thereon.” An action is defined in section 22 of the Code of Civil Procedure as follows: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” A petition for the probate of a will marks the first step in a special proceeding. It does not mark the commencement of an ordinary proceeding by which “one party prosecutes another”. Proceedings for the settlement of estates are not civil actions; they are special proceedings