Estate of Soforenko

260 Cal.App.2d 765 (1968) Estate of HARRY SOFORENKO, Deceased. VIRGINIA RICHMOND, Objector and Appellant,

v.

SAMUEL J. SPITZER, as Successor Executor, etc., Petitioner and Respondent. [260 Cal.App.2d 766]

Civ. No. 31435. California Court of Appeals. Second Dist., Div. Four.

Apr. 3, 1968. Willard D. Horwich for Objector and Appellant.

Leo Branton, Jr., for Petitioner and Respondent.

COLLINS, J. pro tem. [fn. *]

Appellant's notice of appeal purports to be "from the order and judgment, on October 7, 1966, known as Item 501 and Item 502 heard on October 6, 1966, ... and noticed to Virginia Richmond on October 11, 1966, ..." The record shows that the matter of the executor's first "Account Current and Report ..." was heard on October 6, 1966, that no hearing was had or order made on October 7, 1966; that a formal order titled "Decree Settling First Account Current" was signed and filed on October 19, 1966. At oral argument appellant's counsel advised the court that the intended appeal was from this latter order (called "Decree"), and we shall so treat it. [fn. 1]

[1] Appellant attacks the jurisdiction of the court on the ground that the matter was heard and determined by a commissioner sitting as judge pro tempore without compliance having been had with a constitutional provision for a stipulation by the parties litigant. (Cal. Const., art. VI, 5.) [fn. 2] The record shows that, at the hearing, appellant was represented by an attorney who noted his appearance on the record; he voiced no objection to the matter being heard by the commissioner, and he participated fully in the hearing which ensued. He examined the executor as a witness at some length. He argued appellant's objections to the account, and the asserted inadequacy of the report. At the conclusion of the hearing and in response to the court's inquiry as to findings, the attorney replied "Findings waived," as did the attorney for the executor. We construe all this deportment on the part of appellant's attorney as tantamount to a stipulation that the matter could be heard by the commissioner. California Rules of Court, rule 244, which deals with the selection of judges pro tempore is by subdivision (b) of the rule expressly made [767] inapplicable to the selection of a court commissioner to act as a judge pro tempore. The appointment of a commissioner as judge pro tempore is governed by Code of Civil Procedure, section 259a, subdivision 4. Under all the circumstances, we find that there was no error in a commissioner serving as a judge pro tempore in this instance.