Chandler v. Chandler

BARNARD, P. J.

Guy B. Chandler died intestate, and his estate is in the course of administration in the Superior Court of San Bernardino County. His widow is administratrix of the estate, and two children by a former marriage are appellants herein.

The respondent administratrix filed a petition for permission to mortgage certain property belonging to the estate, on July 7, 1930, the hearing of which was set by the clerk for July 21, 1930. Notices were given as provided by law, and on July 18, 1930, the appellants filed an answer and objections to this petition. On July 21, 1930, the trial judge signed an order granting permission to mortgage the property involved, which order was filed on July 22, 1930. It is from that order that this appeal is taken.

Appellants first contend that ■ they were denied a hearing in the trial court. They did not appear at the time set for the hearing of the petition, and they now contend that, since this matter involved a trial of issues of fact, they were entitled to five days’ notice of such trial, and that the court had no jurisdiction on July 21, 1930, to do anything except to set a future date for trial, of which notice must be given them as provided in section 594 of the Code of Civil Procedure. If this section had any application to such a hearing as we are considering, the fact would still remain that appellants had more than five days’ notice of

[608]

said hearing, the record showing that notice of the same was given them on July 7, 1930. However, we think the section referred to has no particular application to the case before us. The hearing and notice involved in this proceeding are governed by section 1578 of the Code of Civil Procedure, in which it is provided that the court, at the time fixed and appointed by the clerk, or at such other time to which the hearing may be postponed, if satisfactory proof is made that due notice of the hearing has been given, must proceed to hear the petition and any objections that may be filed or presented thereto. The order here appealed from recites that it satisfactorily appeared to the court that due notice had been given in the manner provided by law. Due notice having been thus given the court had jurisdiction to proceed, which jurisdiction was not affected by the fact that appellants elected not to be present.