Estate of Katz

California Court of Appeal Jan 9, 1942 No. Civ. 2969Published

Before: Barnard

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Holding. The court held that a voluntary dismissal of a will contest is effective upon filing, rendering a subsequent court order dismissing the same contest 'with prejudice' void for lack of a pending matter. Furthermore, the order is appealable as it effectively determines the appellant's status as an heir entitled to distribution.

Issues

Whether a court has authority to enter an order dismissing a will contest 'with prejudice' after the contestant has already voluntarily dismissed it.
Whether an order dismissing a will contest with prejudice is an appealable order under the Probate Code or Code of Civil Procedure.
Whether the appeal is rendered moot by the contestant's subsequent filing of a petition to revoke probate.

Disposition. reversed

Quotations verified verbatim against the opinion

“The appellant’s voluntary dismissal of his contest did not bar him from filing another contest and his use of the words “without prejudice” was surplusage and unnecessary since it was without prejudice as a matter of law.”

“Moreover, the contest having been dismissed by the appellant before the court entered the order appealed from there was nothing before the court upon which that order could be based. It would appear, therefore, that the order was not only erroneous but void.”

BARNARD, P. J.

This is an appeal from an order dismissing with prejudice a contest to the probate of a will.

[84]

A petition for the probate of the purported last will of Maurice D. Katz, deceased, was filed on March 29, 1941. Before said will was admitted to probate a contest was filed by this appellant, a grandson of the deceased, to which an answer was filed by all of the respondents. Before these matters came on for hearing and on June 2, 1941, this appellant filed a dismissal of his contest “without prejudice. ’ ’ The next day, on motion of the respondents, the court entered an order dismissing “with prejudice” the contest which had been filed by this appellant and which he had already dismissed. The court’s order recited that the appellant had already dismissed the contest without prejudice but that he had “failed to make any showing of any kind to this court why the said contest should not be dismissed with prejudice.” This appeal was taken from that order. The respondents have moved to dismiss the appeal and the matter has been submitted both upon that motion and upon the merits.

The appellant’s voluntary dismissal of his contest did not bar him from filing another contest and his use of the words “without prejudice” was surplusage and unnecessary since it was without prejudice as a matter of law.

(Estate of Cook,

205 Cal. 581 [271 Pac. 1083].) In that case the court said: “It is clear, according to the authorities cited, that the voluntary dismissal by contestants of their first contest did not bar them from instituting the second contest. The court, therefore, had no authority to dismiss the second contest on the ground that the contestants named therein had joined with the other heirs of the testator in dismissing the prior contest.” If the court had no power to dismiss a subsequent contest after a first contest had been dismissed it follows that it had no power to enter an order which, if upheld, would have the effect of preventing a contestant from filing a second contest. Moreover, the contest having been dismissed by the appellant before the court entered the order appealed from there was nothing before the court upon which that order could be based. It would appear, therefore, that the order was not only erroneous but void.

Estate of Katz

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BARNARD, P. J.

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