In re the Estate of Arguello

McFarland, J. This is an appeal from an order directing the sale of certain real property of the estate, upon the petition of E. W. Morse, a creditor.

1. Appellants contend that the petition is fatally defective, because it does not contain the matters required to be stated therein by section 1537 of the Code of Civil Procedure.

It has been settled here that a substantial compliance with that section is sufficient. (Stuart v. Allen, 16 Cal. 501; Richardson v. Butler, 82 Cal. 174.) But it would not be necessary for respondent to invoke that rule in the case at bar, because the petition here is very full, and seems to cover every particular mentioned in the code, except one,—it neglects to state whether the real property was separate or community. But that defect is remedied by the fact that it is stated in the order directing the sale that the property was separate property. (The point originally made in appellants’ brief, that the petition was not verified, has since been met by a stipulation mending the record.)

2. It is contended that the order cannot stand, because there were no findings.

It has never been definitely determined here that findings were necessary in probate orders like the one involved in this case. In Estate of Sanderson, 74 [153]Cal. 201, some doubt on the subject was intimated. In Estate of Crosby, 55 Cal. 574, where there were findings, the point was made by counsel that findings on an order in probate for the sale of property were not authorized by the code, and this court merely said that findings were “proper.” But assuming that the rule about findings applies to probate orders in like manner as to an ordinary civil action tried without a jury, still appellants are in no position to make the point, because the record does not show that findings were not waived, and therefore does not show any error,—a thing which an appellant must always do affirmatively before he can expect to have a judgment reversed. The code does not unconditionally require findings; it requires them only when they have not been waived by one or more of the several methods therein mentioned. (Code Civ. Proc., sec. 634.) And as was said in Mulcahy v. Glazier, 51 Cal. 627: “A party, therefore, who comes here to say that the court below committed an error in failing to find the facts must, by bill of exceptions or some other similar and appropriate method, make it affirmatively appear by the record that no waiver of findings had in fact occurred in the court below; otherwise, the intendment here must go to the support and not to overthrow the judgment therein.” This rule has since been approved and reasserted. (See Reynolds v. Brumagin, 54 Cal. 258; Estate of Sanderson, 74 Cal. 201; Campbell v. Coburn, 77 Cal. 37.)