Burritt v. Santa Barbara Trust Co.

LENNON, J.

This is an appeal from an order granting a new trial after verdict in favor of contestant in a will contest.

Respondent herein offered for probate a document purporting to he the last will and testament of William G. Waters, deceased. Appellant appeared to oppose the probate of the document, alleging that at the time of its execution

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the said William G. Waters* was of unsound mind. The issue as to the capacity of the deceased to make a will was tried before a jury, which rendered its verdict in favor of appellant. The court thereupon entered its order denying the probate of the document offered by respondent. Within ten days after the entry of this order, respondent filed its notice of intention to move for a new trial, stating that the motion would be made upon the minutes.of the court. Within sixty days after the entry of the order and before the motion for a new trial had been brought on for hearing, respondent perfected an appeal to this court from the order in question. Thereafter, and while the appeal from the order was still pending, it brought the motion for a new trial on for hearing. After argument the matter was submitted and the court made its order granting the motion and ordering a new trial on the ground of insufficiency of the evidence. The appeal herein is from this order, and the sole ground of the appeal is that the perfection of respondent’s appeal from the order denying probate to the purported will divested the trial court of further jurisdiction in the cause.

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The general rule is that a duly perfected appeal divests the trial court of further jurisdiction in the cause. It is also true that this rule does not operate to divest the court of jurisdiction to hear and determine questions arising in proceedings independent of and collateral to the proceeding wherein the judgment or order appealed from was rendered. The single question presented for our consideration is whether or not the motion for a new trial in the instant case was an independent and collateral proceeding.

At common law the motion for a new trial was made before the rendition of the judgment. It was in direct line of the judgment and was in no sense an independent and collateral proceeding. The provisions of the code as they stood before the amendments of 1915 indicated a fundamental change from the common-law system. Provision was made for the making of the motion for a new trial after the rendition of the judgment. There was no provision fixing the time within which the motion was to be heard and determined. The only limitation in this regard was the general one applicable to all proceedings that it must be