People ex rel. Burdell v. Probate Court of Marin County

By the Court, Crockett, J.: A paper purporting to be the last will of James Black, deceased, was presented for probate to the Probate Court of Marin County. One of the heirs at law filed an opposition to the probating of the alleged will, on the ground that the testator was incompetent to make a will, and that it was procured through fraud and undue influence. Three several juries were impaneled to try these issues, each of which failed to agree. Thereupon the executors applied to the Court, upon notice and affidavits, for an order to change the place of trial to another county, on the ground that it would be impossible to obtain an impartial jury in that county, and that each of the preceding trials had involved an expense to the estate of more than three thousand dollars. The affidavits make a strong showing in support of the application, and no counter-affidavits were presented. At the hearing, the motion was granted and an order entered changing the place of trial to the City and County of San Francisco, and to the Probate Court thereof. Subsequently, the opponents moved the' Probate Court of Marin County to proceed with the trial, claiming that it had no jurisdiction to change the place of trial, and that the order transferring the issues to the Probate Court of San Francisco for trial, was void. The Probate Court of Marin refusing to proceed with the trial, this is an application for a writ of mandate to compel it to proceed.

The only question raised by the application for the writ, is whether the Court had the authority and jurisdiction to enter the order changing the place of trial. There is no express provision of the statute authorizing the place of trial to be changed in such cases. But section twenty-one of the Practice Act in civil cases provides that in civil actions the place of trial may be changed, when there is reason to believe that an impartial trial cannot be had in [247]the county in which the action is pending, or “when the ends of justice may be promoted by the change and section twenty of the Probate Act, as amended by the Act of March 30th, 1868, providing for the trial of such issues by a jury in the Probate Court, directs the jury to be summoned and impanelled in the same manner as is provided by law for summoning and impaneling juries in the County Courts for the trial of civil actions, and that the trial shall be had as in other civil actions, and that a new trial may be had, and an appeal taken, as in other civil cases. It is further provided that "the Act regulating proceedings in civil cases in the Courts of justice in this State, when not inconsistent with or repugnant to the provisions of this Act, shall be applicable to and govern the practice on trials of issues of fact by jury in the Probate Court, provided for in this Act.” Section two hundred and ninety-three of the Probate Act also provides that “the practice in the District Court shall be applicable to proceedings in the Probate Court, so far as the same does not conflict with any enactment specially applicable to the Probate Court, or is not inconsistent with the provisions of this Act;” and by the Act of May 6th, 1854 (Stats. 1854, p. 153,) it is provided that if an action or proceeding is pending “in a Court,” and if the judge is disqualified from acting, “or if from any cause the Court orders the place of trial to be changed,” the cause shall be transferred to another Court or county; and if it be pending in a Probate Court, it shall be sent to a District Court, or some other Probate Court. The fourth section provides that in an action or proceeding transferred from a Probate Court, the Clerk of the Court in which it is heard, after final judgment therein, shall certify under his seal of office, and transmit to the Court from whence it was transmitted a full transcript of the proceedings and judgment, and the Clerk receiving the same “shall docket and record the judgment in the records of his Court, briefly