Thomas v. Fairchild

California Court of Appeal Dec 3, 1956 No. Civ. 21804Published

Before: Vallee

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Holding. The court held that it lacked jurisdiction to hear the appeal because the motion for a new trial was invalid, meaning it did not extend the statutory deadline for filing a notice of appeal. Consequently, an appeal filed 92 days after the entry of the order was untimely.

Issues

Whether a motion for a new trial lies from an order allowing attorney's fees for extraordinary services in probate.
Whether an invalid motion for a new trial extends the time for filing a notice of appeal.
Whether the court has jurisdiction over an appeal filed after the expiration of the statutory period.

Disposition. dismissed

Quotations verified verbatim against the opinion

“A motion for a new trial did not lie from the order of October 31, 1955.”

“The requirement as to the time for taking an appeal is mandatory, and a reviewing court is without jurisdiction to consider an appeal which has been taken after the expiration of the statutory period.”

“Since the appeal was not taken within 60 days from the entry of the order it was not timely; this court is without jurisdiction to consider the ease on the merits and the appeal must be dismissed.”

VALLÉE, J.

Appeal by Arthur A. Fairchild, executor of the will of Myrtle F. Welch, from an order allowing Le Roy Thomas fees for extraordinary services as attorney for the executor.

Without making a formal motion, respondent suggests that this court is without jurisdiction of the appeal and that it must be dismissed. We agree.

On October 31, 1955, the probate court signed and filed an order reading:

“It is hereby ordered by the Court that the sum of $750.00 is allowed to said Le Roy Thomas, one of the attorney’s for Arthur A. Fairchild, the sole beneficiary of the estate herein, for services rendered to said estate in the contest of the Will

[536]

herein; and Arthur A. Fairchild, the executor herein, is ordered and directed to pay forthwith the said sum of $750.00 to Le Roy Thomas out of the funds of said estate in his hands, in the due course of administration thereof.”

The contest was before probate. Notice of the signing and filing of the order was served on appellant on November 9, 1955. On November 18, 1955, appellant filed a notice of intention to move for a new trial. On January 11, 1956, the motion was denied. Notice of appeal from the order of October 31, 1955 was filed on January 31, 1956.

A motion for a new trial did not lie from the order of October 31, 1955. Probate Code, section 1231, specifies the probate proceedings in which a motion for a new trial may be made. It reads:

“A motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings to determine heirship and interests in estates, and in those cases where the issues of fact, of which a new trial is sought, were of such character as to entitle the parties to have them tried by a jury, whether or not they were so tried.”

A proceeding for the allowance of attorney’s fees for extraordinary services claimed to be performed for an executor is not one of the proceedings specified. (See

Estate of Bell,

58 Cal.App.2d 333, 338 [136 P.2d 804].) The procedure allowed by the Code of Civil Procedure on motion for a new trial in civil actions may not be applied to such a proceeding. In

Thomas v. Fairchild

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