Levy v. Superior Court

McFARLAND, J.

On December 30, 1901, the superior court, respondent herein, made and entered an order in the matter of the estate of Henry Levy, deceased, setting apart as a homestead to the petitioner'herein, Pauline Levy, widow of the deceased, certain described premises for the period of her widowhood. "Within seventeen days thereafter the executors of the will of decedent, and also Hattie Rosenblum, an heir of decedent, filed and served notices of motions to set aside said homestead order. Said motions were made on the

[591]

grounds, among others, that the order was obtained through the “inadvertence, surprise, and excusable neglect” of said moving parties. The motions were accompanied by affidavits tending to show that the homestead order was unjust, etc., that it was procured by misrepresentation, etc.; that the neglect of the moving parties, in not attending court and opposing the homestead order when it came up for hearing, was excusable; and that they were surprised,, etc. After a hearing, the court, on January 16, 1902, made an order setting aside and vacating said homestead order of December 30, 1901. The return shows that the vacating order was made with the consent of said Pauline, given through her attorney; but we do not deem it necessary to determine the questions discussed by counsel as to the effect of such consent. This present proceeding in

certiorari

is brought in this court to have said order of January 16th set aside and-vacated.

The only question legitimately before us on this proceeding' is, Did the court have jurisdiction to make the vacating order ? Petitioner contends that the homestead order was final; that in making it the court exhausted its jurisdiction over the subject ; and that it had no power afterwards to review, modify, revise, or vacate its own prior adjudication. But this principle applies, at most, only, as stated in one of the authorities cited by petitioner, “in the absence of statutory grant of power to'open orders and decrees.” And there is a statutory grant covering the matter here involved in section 473 of the Code of Civil Procedure, which provides that a court may relieve a party from a judgment, order, or proceeding taken against him “through his mistake, inadvertence, surprise, or excusable neglect,” provided application be made within a reasonable time, not in any ease