Bauer v. Willis

THE COURT.

This is an application to compel the respondent, as judge of the superior court in and for the county of Los Angeles, to certify a transcript to be used upon appeal from an order heretofore made and entered by said court. There is no controversy as to the facts herein, and it appears from the record that one of the petitioners herein heretofore filed a petition in said court in the matter of the estate of Emile Bauer, deceased, for an order restrain

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ing the executors of the will of said deceased from selling and disposing of certain assets of the estate claimed to have been specifically bequeathed to petitioners. Thereafter another petition was filed therein by others of the petitioners herein, praying for the same relief, and in addition thereto asking for “the removal of said executors.” A citation was issued, the matter came on for hearing before the court, and a hearing was had and evidence taken upon both of said petitions. Both of said petitions were thereupon regularly submitted to the court for consideration and decision, and thereafter the court made its order denying said petitions, which was in part as follows: “Wherefore, it is ordered, adjudged and decreed, . . . that the citation issued herein, be and the same is hereby dismissed, and the petition for removal of executors, be and the same is hereby denied.” Said order also awarded costs in favor of the respondents therein and against the petitioners herein. Thereafter and within due time the petitioners appealed from said order, requested and procured a transcript of the testimony, etc., pursuant to section 953 et seq. of the Code of Civil Procedure, and presented the same to the respondent judge for settlement and certification. Bespondent refused to settle or certify the same solely upon the ground that the said order was not an appealable order. Petitioners point to the fact that appeals from similar orders have been frequently entertained and acted upon without question by this court and by the district court of appeal, citing

In re Newell,

18 Cal. App. 258 [122 Pac. 1099];

Estate of Healy,

137 Cal. 474 [70 Pac. 455];

Estate of Bell,