In Re Estate of Faber

SHAW, J.

This is an appeal from an order setting apart to Mildred Faber, the widow of decedent, a parcel of land belonging to the estate, as homestead.

The respondent moves to dismiss the appeal on the ground that no sufficient notice of appeal has been filed. The opening part of the notice of appeal shows the defect relied on. It is as follows: “Notice is hereby given, pursuant to section 953a of the Code of Civil Procedure, to all persons concerned that the undersigned Mary E. Suffal, desires to appeal and does hereby appeal to the supreme court from the order,” etc. We deem this a sufficient notice in substance, although it is not in good form. It differs from the notices of appeal held insufficient in

Lent

v.

California etc. Assoc.,

161 Cal. 719, [121 Pac. 1002] ;

Boling

v.

Alton,

162 Cal. 299, [122 Pac. 461], and

Marcucci

v.

Vowinckel,

164 Cal. 695, [130 Pac. 430], in this, that it expressly states that Mary E. Suffal “does hereby appeal,” from the order, etc., describing it with sufficient accuracy. The notices in the cases cited did not contain any equivalent language, but were plainly phrased for notices to the clerk to prepare the transcript, as provided by section 953a. This notice expressly states that the petitioner does appeal, and it is therefore good as a notice of appeal under section 941b of the Code of Civil Procedure. The fact that it is drawn so as to serve the double office of a notice of appeal and a notice to the clerk, under section 953a, as appears from the subsequent parts of the notice (not above qrwted), does not destroy its effect as a notice of appeal, nor is the statement that it is given “pursuant to section 953a” fatal to its sufficiency as a notice of appeal. That phrase may properly be deemed applicable, solely to the subsequent part constituting a notice to the clerk, or as mere surplusage. It could not have misled the parties interested and, under the rule prevailing since the enactment of section 941b, such faults do not vitiate an appeal.

(Southern Pac. Co.