Focha v. Estate of Focha

[577]

KERRIGAN, J.

This is an appeal from an order dismissing a petition to revoke the probate of a will for lack of prosecution.

Frank J. Focha died, leaving a will, which was probated November 27, 1905. On November 24, 1906, John Focha and ■others filed a petition for the purpose of procuring the revocation of the probate of said will, but no citation was issued -at that time, or at any time thereafter, to the executrix or to any other person. May 17, 1907, the executrix filed a motion to dismiss the petition, upon the ground that there had been an unreasonable delay in its prosecution.

The Code of Civil Procedure (section 1327) provides that a contest of the probate of a will may be commenced by filing a petition in writing “at any time within one year after such probate.” The next section, as it existed at the time of these proceedings and prior to the amendment of 1907, provided that a citation must be issued to certain named parties, but mentions no specified time within which it must be issued; and appellant contends that a citation might issue at any time within one year after the filing of the petition for revocation. In support of this contention he cites the case of

Bacigalupi

v.

Superior Court,

108 Cal. 92, [40 Pac. 1055], where it is said that “A citation in its general character is a summons, and under the provisions of the code, giving section 1328 the widest latitude possible, the power to issue a citation would beyond all question cease one year after the petition for revocation was filed.” But the court also added: “Whether it would cease in less than a year we need not here decide.” That case, notwithstanding the language just quoted, is authority only to the point that no citation could be issued after the expiration of one year from the filing of the petition. The comparison there made between a citation and a summons was unnecessary for the decision of the ease, and the view of the court in that regard was criticised in the case of

San Francisco Protestant Orphan Asylum

v.