In Re Estate of McCarty

MELVIN, J.

This is in form an appeal by one P. L. Wilson from an order denying his motion to set aside an order of sale in the estate of Anna E. McCarty, deceased. The only connection of appellant with said estate is that of purchaser of the real property thereof, sold and confirmed to him by the probate court under and by virtue of the order of sale and subsequent proceedings which he attacked in his motion. On February 8, 1913, the court made an order authorizing the executor of the estate to sell the real property, and on December 6, 1913, an order was made confirming the sale of certain of the lands of the estate to the appellant herein. On May 2, 1914, appellant served and filed notice of motion to vacate and set aside the order of February 8, 1913, and all subsequent proceedings pertaining to the sale of the property, on the ground that the court was without jurisdiction to make the order and to entertain the other proceedings involved. On May 9, 1914, the motion was denied after argument. It will thus be seen that no appeal from the order authorizing the sale of the property of the estate or from the order con

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firming the sale is here involved, but that many months elapsed subsequent to such orders before appellant sought relief by his motion.

Respondent insists that the order attacked is not appeal-able. If any authority for such an appeal exists, it must be found in subdivision 3 of section 963 of the Code of Civil Procedure.

(Estate of Calahan,

60 Cal. 233;

In re Seymour,

15 Cal. App. 290, [114 Pac. 1023].) That subdivision provides that an appeal may be taken from a judgment or order “against or in favor of directing the partition, sale or conveyance of real property.”

In

Estate of Smith,

51 Cal. 565, it was held that under section 969 of the Code of Civil Procedure (which was the same as the third subdivision of the present section 963), an order refusing to set aside an order of sale previously made is not appealable.