Estate of O'Dea

CURTIS, J.

This is a motion to dismiss an appeal from an order denying the motion of the appellants to be relieved of their default for failure to appear at the trial. The appellants’ motion to be relieved of said default was made in pursuance of the provisions of section 473 of the Code of Civil Procedure. The present motion to dismiss is made upon the ground that the order of denial from which the appeal purports to be taken is not an appealable order. The proceeding in which said order of denial was made was instituted under section 1080 of the Probate Code to determine the heirs of Michael P. O ’Dea, deceased, who died intestate and whose estate was then in course of administration in the Probate Court of the County of Los Angeles. The appellants herein, Henry J. O’Day and Genevieve O’Day Jensen, together with hundreds of other claimants, had appeared in said proceeding and after a number of days’ trial the court, on July 25, 1939, made an order of dismissal and nonsuit against 235 of said claimants, including the two appellants herein. Thereafter, and on April 15, 1940, the appellants made a motion to set aside said order and for relief under section 473 of the Code of Civil Procedure. This motion was denied, and the present purported appeal was taken by the appellants from said last-named order.

Section 1240 of the Probate Code specifies the orders and judgment in probate from which an appeal will lie, and an order denying relief under section 473 of the Code of Civil Procedure is not one of the orders so specified. A proceeding to determine heirship is a matter in probate.

(In re Blythe,

110 Cal. 226 [42 Pac. 641].) As this order denying the appellants’ motion brought under section 473 of the Code of Civil Procedure to be relieved of their default was one made in probate, no appeal will lie from said order under the provisions of said section 1240 of the Probate Code.

The only exception to this general rule confining appeals from orders or judgments in probate to those specified in said section 1240 of the Probate Code is that an appeal will lie from an order granting or denying a motion for a new trial in those proceedings in probate in which motion is proper.

(Estate of Allen,

175 Cal. 356 [165 Pac. 1011].)

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