Overton v. Overton

[118]

CHIPMAN, P. J.

On June 1, 1908, the superior court made an order allowing the surviving widow fifty dollars per month from the date of the death of decedent for her maintenance .and support, “and to continue until the further order of this court.” On November 28, 1908, H. L. Over-ton, on behalf of himself and certain other children and heirs at law of deceased, devisees and legatees of the will of decedent, filed a petition praying for the discontinuance of said allowance. On December 1, 1908, the petition came on to be heard and the court on that day made an order granting the petition “discontinuing any family allowance to the said widow in said estate.” The widow appeals from this order on the ground, as stated in her brief, that under section 1466, Code of Civil Procedure, the court “must make such reasonable allowance out of the estate for the widow,” etc., and that when so made the order “becomes a final judgment in her favor for that amount”; that no appeal having been taken from that order and the time for appeal having passed, the power of the court over its order was at an end and “the superior court was without jurisdiction to review the order. ’ ’

Respondent makes the point that the order is not appeal-able, which we think is well taken. Subdivision 3, section 963, Code of Civil Procedure, gives ant appeal from an order “against or in favor of setting apart property, or making an allowance for a widow or child.” No appeal is given from an order discontinuing an allowance. If the court was without jurisdiction to make the order complained of its power could be tested by

certiorari,

but not by appeal. (Code Civ. Proc., see. 1068.) Appellant attempts to meet the point by the suggestion that as the effect of the order is to deprive her of the allowance, it is equivalent to an order refusing to grant an allowance. We cannot so understand the code section. It refers to the original order granting or refusing the allowance prayed for. In analogous cases the supreme court has denied the appealability of such orders as the one here. In

Estate of Smith,

51 Cal. 563, an appeal from an order refusing to set aside an order of sale (an appealable order) was dismissed. Like action was taken in