In Re Estate of Pichoir

Motion to dismiss appeal. For the reasons given in the opinion heretofore delivered on this motion (post p. 700) the motion to dismiss the appeal from the order distributing the estate of the deceased must be denied. It appears that a certain stipulation of July 22, 1901, printed in the transcript, which is copied in that opinion, was not signed by the attorneys for the appellants, the Moosers; but the attorneys of those appellants did sign a stipulation of that date, which is attached to the transcript in a type-written form, and is as follows: "It is hereby stipulated that the foregoing printed pages contain a full, true, and correct copy of the bill of exceptions, the petition for distribution of estate, the order distributing and assigning the residue of the estate, being the order appealed from, the notice of appeal, and of all papers used on the above petition for distribution of estate, in the court below, and that said printed pages are a full, true, and correct transcript of said papers. It is further certified that an undertaking on appeal in due form had been properly filed." The difference in the two stipulations does not affect the conclusion reached in the opinion.

The motion to dismiss the appeal is denied.

Van Dyke, J., Angellotti, J., Lorigan, J., and Henshaw, J., concurred.

Motion of respondents to dismiss an appeal from an order distributing the estate of the decedent. The ground of the motion is, that the notice of appeal was filed and served before the entry of the order, and was therefore premature. The notice of appeal is dated June 6, 1901, and it was given on the theory that the order appealed from was entered May 20, 1901, the day on which it was signed and filed. Respondents contend that it was not entered until June 14, 1901, which was of course a few days subsequent to the notice of appeal.

The transcript on appeal contains a bill of exceptions setting forth quite fully the proceedings had on the petition for distribution, and, among other things, it is stated therein positively that "afterwards, to-wit, on the twentieth day of May, one thousand nine hundred and one, the court made, entered, and filed an order distributing and assigning the residue of the estate of the said Henry Pichoir, which order was in words and figures following." The judge of the court below being absent from the state at the time, respondents and appellants stipulated in writing that "the bill of exceptions shall be deemed and taken for all purposes to be settled, allowed, and approved as of this date, with like force and effect as if settled, approved, and certified by said judge." Counsel for respondents also, on July 22, 1901, signed the following stipulation to the transcript: "It is hereby expressly stipulated and agreed that the foregoing printed pages contain full, true, and correct copies of the bill of exceptions; the order distributing and assigning the residue of the estate, the order appealed from; the notice of appeal; and of all papers used on the hearing in the court below; that the same constitute a full, true, and correct transcript on appeal in this case; that the said transcript shall be and constitute the record on appeal to the supreme court of the state of California from the said order, and that all proceedings were duly taken andall notices were given in due time, and a good and sufficient undertaking on appeal was *Page 701 given as required by law." The transcript was filed here on August 5, 1901, and it constitutes the record in this court.