Estate of Knauft

[537]

JAMES, J.

In this case the appeal is taken by the defendants from the judgment of dismissal entered on the motion of the plaintiffs. The proceeding was brought by certain alleged heirs of William Knauft, deceased, for the purpose of securing the revocation of an order admitting to probate the will of said deceased. Defendants demurred to the petition and moved to strike it from the files. The demurrer was overruled and the motion denied.

It is recited in the judgment that the proceeding was called for trial on the twenty-fifth day of January, 1922, and that “on the thirtieth day of January, 1922, when said cause was reconvened for trial, and before the submission thereof, the said plaintiffs, by their counsel, in open court moved for a dismissal of said cause and petition, without prejudice, which said motion of; plaintiffs was granted by the court, over the objection of the defendants thereto. ’ ’ The judgment dismissing the action declared such dismissal to be without prejudice to the' filing of a new petition, and it is particularly to the latter condition that appellants address their complaint.

It is insisted first that the court had no authority to so qualify the judgment of dismissal as to give to the petitioners the right to further prosecute a proceeding for the revocation of the probate order. It seems to be well settled under our practice that a party may at any time, before final submission of a cause, dismiss the same (sec. 581, Code Civ. Proc., subd. 4) and that the judgment in that case will not operate as a bar to .the recommencement of an action based upon the same cause

(Merritt

v.

Campbell, 47

Cal. 542;

West Bay

v.

Gray et al.,

116 Cal. 660 [48 Pac. 800]), and there seems to be no reason why the same rule is not applicable to proceedings in probate. This conclusion would seem to put an end to appellants’ case here. It is urged, however, that on this appeal the appellants have the right to have considered the rulings of the court made on their demurrer and motion to dismiss. Without admitting that the orders made on the demurrer and motion are subject to review here, the points covered in the argument of appellants under that head may be briefly considered. Their demurrer was on the ground that the proceeding was started too late, having been commenced more than one year after the making of the 'order admitting the will to probate. Sec