White v. Kirchmann

STURTEVANT, J.

This is a purported appeal in a probate proceeding. Jane Sanders died testate on the twenty-third day of May, 1918. On May 28, 1918, the respondents filed her will for probate; thereafter the will was admitted to probate and the respondents qualified and have continued to act as executor and executrix of the will. On the twenty-eighth day of August, 1919, the appellants filed a contest and asked for an order revoking the probate of the will. Thereafter on May 26, 1920, the contestants appeared in open court and voluntarily moved to dismiss the contest. The next day the judgment of dismissal was duly entered. On November 1, 1920, the appellants served and filed a notice that thereafter they would move the trial court for an order permitting them to withdraw their motion to dismiss, for an order setting aside and vacating the dismissal, and for other relief, specifying it. It was stated in the notice last mentioned that the application would be made on the ground that the motion of dismissal was made through the mistake, inadvertence, surprise, and excusable neglect of the moving parties. After numerous affidavits had been filed, the application was heard and on December 8, 1920, an order was entered refusing to vacate the order of dismissal. From the order last mentioned the appellants filed a purported notice of appeal. While the appeal was pending in this court the respondent did, on September 26, 1924, serve and file a notice of motion to dismiss. On October 2, 1924, an order was made that the appellants might have fifteen days to file a brief on the- cause on its merits and on the motion to dismiss, and that the motion and the cause would then stand submitted.

In the view that we take of the matter we think it is not necessary to consider the appeal on its merits. This court has jurisdiction of appeals in probate matters only by virtue of the provisions of the statute. The statute on that subject is section 963, subdivision 3, of the Code of Civil Procedure. An order refusing to revoke the probate

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of a will is an appealable order, but an order refusing to set aside an order denying an application to revoke the probate of a will is not an appealable order.

(Estate of Overton,

13 Cal. App. 117 [108 Pac. 1021].) In that case the orders dealt with a family allowance, but the reasoning of the court is directly applicable. To the same effect see