Estate of Hewitt

California Court of Appeal May 19, 1958 No. 17921Published

Before: Peters

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Holding. The court held that an order entered without required findings of fact should be reversed rather than dismissed, and that while the appeal regarding the deceased respondent's appointment was moot, the denial of the appellant's petition for letters required reversal.

Issues

Whether an order entered without required findings of fact should be dismissed or reversed on appeal.
Whether an appeal from an order appointing an administrator becomes moot upon the administrator's death and removal.
Whether the denial of a petition for letters of administration is reversible error when not supported by findings of fact.

Disposition. reversed in part, affirmed in part, and dismissed in part

Quotations verified verbatim against the opinion

“The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from.”

“It has been repeatedly held that an appeal may be taken from an order or judgment notwithstanding the fact that it is void.”

“Appellant is entitled to have this portion of the order reversed because of the failure to make findings.”

160 Cal.App.2d 584 (1958) 325 P.2d 113 Estate of FLORENCE ELIZABETH HEWITT, Deceased.

ETHEL MARY PEAK, Appellant,

ROBERT M. McGROUTHER, as Administrator With the Will Annexed, etc., Respondent.

Docket No. 17921. Court of Appeals of California, First District, Division One.

May 19, 1958. [585] Ethel Mary Peak, in pro. per., for Appellant.

O'Gara and O'Gara for Respondent.

PETERS, P.J.

On January 22, 1957, Florence E. Hewitt died, testate, leaving as her sole heirs her niece and nephew Ethel Peak and Percival Myers, brother and sister. Both filed petitions for letters of administration with the will annexed. After Myers had filed, and before Ethel Peak had filed, the probate court on February 13, 1957, on the ex parte application of Myers, appointed him special administrator. On February 25, 1957, Ethel Peak filed objections to the appointment of Myers, and on the same day filed her petition for letters. On March 11, 1957, after a hearing, the court entered its minute order reading as follows:

"Petition of Ethel M. Peak for Letters of Administration with Will annexed Denied.

"Petition of Percival H. Myers for Letters of Administration with Will annexed Granted."

The next day, March 12, 1957, the court entered its formal [586] order admitting the will to probate and appointing Myers administrator with the will annexed.

On March 14, 1957, Ethel Peak appealed from the minute order of March 11, 1957. On April 17, 1957, Ethel Peak filed an amended notice of appeal "from the orders made and entered in the above entitled matter granting the petition of P.H. Myers for letters of administration and the order denying the petition of Ethel M. Peak for letters of administration....

Estate of Hewitt

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PETERS, P.J.

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