Estate of Moreland

NOURSE, P. J.

This appeal is taken by the successful bidder from an order granting motions to vacate an order confirming a probate sale of real property to him. The motions were made by the administrator of the estate and the • original bidder upon the grounds that the administrator had, by inadvertence and mistake, notified both the original and a prospective bidder that the hearing upon the return of sale would be held on September 5, 1940, instead of on September 4, the day for which said hearing had been duly

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noticed and was in fact held; that, because of such error, the original and the prospective bidder, each of whom intended and was prepared to make a substantially higher bid, were led to remain away from the court and failed to take any part in the proceedings. At the hearing of the motions to set aside the order of confirmation the court had evidence of the intention and purpose of both the original and the prospective bidder that they would increase the amount bid by the appellant, and we must assume that the court found that it would be of benefit to the estate to call for new bids.

The appellant states three questions upon which he relies for a reversal of the order. (1) “Is a mere statement of intent to increase a bid a sufficient ground to vacate a probate sale of real estate after confirmation?” As stated, the question must of course be answered in the negative, but this record does not present that question. The order appealed from was based upon the motions showing that the order of confirmation was made “through mistake and/or inadvertence” and not upon the “mere statement of an intent to increase a bid.”

(2) “Where the purchaser is ready, willing, and able to buy, may the Court vacate the order of confirmation for the sole purpose of seeking further bids?” This statement is open to the same objections. It does not present a debatable question on appeal since the grounds of the motions are incorrectly stated. If the probate court had jurisdiction to grant relief under section 473 of the Code of Civil Procedure such jurisdiction attached as a result of a motion made in compliance with the terms of that section—a motion based upon the ground that the order sought to be set aside had been taken against the mover “through his mistake, inadvertence, surprise or excusable neglect.”