Estate of Murphy

California Court of Appeal Jan 23, 1940 No. Civ. 11223Published

Before: Ward

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Holding. The court dismissed the appeal from the decree settling the revised final account as untimely and affirmed the decrees settling the supplemental account and the interlocutory judgment of partition, finding them to be independent and properly adjudicated.

Issues

Whether an appeal from a decree settling a revised final account filed more than sixty days after its entry is timely.
Whether a decree settling a supplemental account is so interwoven with a prior final account that an appeal from the former allows review of the latter.
Whether the interlocutory decree of partition was properly granted.

Disposition. Dismissed in part; affirmed in part.

Quotations verified verbatim against the opinion

“The requirements as to the time for taking appeals are mandatory, and this court is without jurisdiction to consider the appeal from this particular decree.”

“The decree settling the supplemental account is not so interwoven with the decree settling the revised final account that an appeal from the former necessarily requires a review of the matters involved in the latter.”

WARD, J.

An appeal from decrees settling a revised final account, an account supplemental thereto and from an interlocutory judgment of partition appointing and authorizing a referee to apportion the respective interests of the widow and five children in the matter of the estate of William H. Murphy, deceased. The revised final account was a final determination to August 1, 1937. It was approved on February 18, 1938, and filed

the

following day. A formal notice of the entry of this decree was not served upon appellants. However, on March 24,1938, a notice of hearing of a supplemental

[655]

account was served upon them, which notice contained references to the February 18, 1938, decree. In addition it may be noted that appellants actively participated in settling the revised final account. The supplemental account covering a period from August 1, 1937, to March 1, 1938, was approved April 13, 1938. The notice of appeal from the above decrees was filed May 4, 1938.

In the brief filed by Christiana Murphy, the respondent, there appears a motion to dismiss the appeal from the decree settling the revised final account on the ground that the notice of appeal was not filed within the time allowed by law.

Section 1240 of the Probate Code provides for an appeal from an order settling an account of an administratrix, and section 939 of the Code of Civil Procedure fixes the time within which such appeal must be taken as sixty days from the entry of the judgment or order. This last section is applicable to appeals in probate matters by virtue of section 1233 of the Probate Code. Formerly section 1715 of the Code of Civil Procedure provided for appeals in probate matters, but this section has been omitted from the Probate Code. (Stats. 1931, p. 687; Prob. Code, sec. 1700.) The filing of a signed decree is equivalent to entry " at length in the minute-book of the court”. (Prob. Code, sec. 1221.) The statute does not require service of notice of entry of the decree settling the revised final account.

(Lawson

Guild,

Estate of Murphy

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WARD, J.

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