Linstead v. Superior Court

California Court of Appeal Oct 9, 1936 No. Civ. 5724Published

Before: Pullen

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Holding. The court held that the trial court lacked jurisdiction to vacate a decree of distribution while an appeal from that decree was pending and that the order was void for failure to provide proper notice to the affected parties.

Issues

Whether a trial court retains jurisdiction to vacate a decree of distribution while an appeal from that decree is pending.
Whether a court has jurisdiction to set aside a judgment under section 473 of the Code of Civil Procedure without providing notice to the adverse parties whose rights are affected.

Disposition. annulled

Quotations verified verbatim against the opinion

“the effect of an appeal is to remove from the jurisdiction of the trial court all questions affecting the validity of the judgment or order appealed from”

“an appeal by anyone interested in the estate is sufficient to remove the entire matter from the probate court to the court of review”

PULLEN, P. J.

In the estate of George Golden, deceased, a decree of final distribution was entered distributing a portion of the estate to the petitioners herein, and denying distribution to one E. T. Stoddard, the proponent of a will which has been denied probate. In due time an appeal was taken from this decree of final distribution by Stoddard, which appeal is still pending.

Thereafter, and on April 13, 1936, Charles Hewitt, together with other half brothers and half sisters of the predeceased wife of Golden, moved, under the provisions of section 473 of the Code of Civil Procedure, to set aside the decree of distribution. On the same day a copy of the petition was served upon the attorney for the distributees named in the decree, but no time was set nor notice of hearing given.

On May 12, 1936, the clerk of the court fixed the 22d day of May as the time for the hearing of the motion and gave

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notice thereof by posting. The motion was then continued from time to time until June 22d, when the matter was called for hearing before a judge of an adjoining county duly assigned to sit for the judge of the county of Mendocino. At that time an attorney, appearing for the attorney of record for the distributees herein, objected to the hearing upon the ground that no notice of the hearing of the petition had been given as required by law and the court was without jurisdiction to hear the matter. This objection was overruled. The moving parties then filed and served an affidavit in support of the motion which, over the objection of the distributees, was admitted in evidence. A motion to strike the same from the files was then made and was likewise denied. Upon the matter being called for hearing objection was made to any proceeding on the ground that an appeal was pending involving the decree of final distribution in the estate of Golden, deceased, and also that no notice had been given as required by law, and that the court was therefore without jurisdiction. This being overruled, the court proceeded to hear the matter, and the decree of distribution was vacated and set aside. A motion to set aside this order was again made upon the ground of want of jurisdiction, and again denied.

Petitioners thereupon filed this writ of review to test the validity of this order setting aside the decree of distribution. Respondent questions the propriety of this method of inquiry by writ of review, but it is apparent from examination of section 963 of the Code of Civil Procedure and section 1240 of the Probate Code that an order granting or denying a motion to set aside a decree of distribution is an order from which no appeal may be taken

Linstead v. Superior Court

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PULLEN, P. J.

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