Estate of Yale

California Supreme Court Sep 10, 1929 No. Docket No. L.A. 11409.Published

Before: Waste

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Holding. The court held that minute orders granting nonsuit were merely memoranda for a future final judgment, making the formal judgment the appealable order, while the appeals from the minute orders themselves were untimely.

Issues

Whether minute orders granting nonsuit constitute final judgments for the purpose of triggering the sixty-day appeal period.
Whether an appeal lies from a formal judgment that incorporates prior minute orders of nonsuit.

Disposition. Appeals from minute orders dismissed; appeal from judgment denied dismissal.

Quotations verified verbatim against the opinion

“the minute orders were intended by the trial court, and must have been understood by the parties, to be and to serve merely as memoranda affording data from which a proper final judgment might thereafter be drafted”

“In such case an appeal is held to lie from the formal judgment.”

WASTE, C. J.

Motion to dismiss appeals. The last will and testament of Charles Yale, deceased, and a codicil thereto, were duly admitted to probate, and letters testamentary issued. A contest and petition to revoke the probate was filed by the appellants, and the proceeding came regularly on for hearing. During the hearing, and as the introduction of evidence progressed, the proponents and respondents moved for a nonsuit as to each of the four grounds of contest. An order granting the motion as to the third and fourth grounds of contest was entered in the minutes on November 23, 1928, and an order granting the

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motion as to the second ground was entered on December 6, 1928. On the following day a nonsuit was granted as to the first ground of contest, but only as to two of the contestants. The issue presented by the first ground of contest was submitted to a jury, which .found for the remaining contestants. Judgment was entered in accordance with the verdict on December 31, 1928.

The judgment provided, in part: “That said motions of said respondents, . . . for a nonsuit and dismissal of the second, third amended and fourth separate grounds of contest, having heretofore been ordered granted, same are, and each of them is hereby granted, and said separate grounds of contest to revoke said Will and Codicil and the probate thereof on the ground of undue influence, fraud and conspiracy and lack of proper execution, are hereby dismissed and said contestants shall have and recover nothing and be granted no relief under and by reason of said second, third amended and fourth separate grounds of contest, and it appearing that contestants, Jennie Ethelyn Grisier, . . . and Richard Miller, are not interested in said estate as contemplated by law, and are not proper parties to said contest, said action and contest is dismissed as to said contestants Jennie Ethelyn Grisier and Richard Miller, only.” On February 14, 1929, the contestants filed a notice of appeal to this court from each of the several minute orders above referred to and from that portion of the judgment just above quoted. The notice of appeal was filed more than sixty days after the entry of the respective minute orders, but within sixty days of the entry of the judgment.

In moving for a dismissal of the several appeals, the respondents rely on section 581 of the Code of Civil Procedure, which reads, in part, as follows: “An action may be dismissed, or a judgment of nonsuit entered, in the. following cases: . . .

Estate of Yale

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WASTE, C. J.

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