Estate of Westerfield v. Westerfield

Foote, C. — This contest arises on a cross-petition for a decree of distribution of the estate of William Westerfield. The court below seems to have treated the matter as requiring, incidentally, before final decree of distribution, under the provisions of section 1664 of the Code of Civil Procedure, that the question of heirship of the parties contestant should be determined, and did, by its decree^ make such determination; and that “the plaintiffs, Mary B. Smith, Emma Danuser, Charles Westerfield, and Fred Westerfield, are the lawful heirs at law of, and the only heirs of, William Westerfield, deceased, and as such are [114]entitled to inherit his estate, share and share alike.” Afterwards a decree of final distribution was made, based upon the decision in this proceeding. No appeal is prosecuted from this last decree. But an' appeal has been taken from the judgment or decree determining the question of heirship, and from an order denying a new trial. The appeal from the judgment cannot be considered, for the reason that the appeal was not taken until more than sixty days after the entry of the judgment. (Code Civ. Proc., secs. 1664,1715; In re Backus’s Estate, 95 Cal. 671.)

The point is made by the respondent that the notice of motion for a new trial is not sufficient, and that, therefore, the motion must necessarily have been properly denied. The motion was made upon the minutes of the court, and that which seems to us to be a statement on motion for a new trial, under section 661 of the Code of Civil Procedure. Respondent argues that the notice of motion does not show a sufficient statement of the grounds of the motion, and shows no sufficient specification of errors of law occurring at the trial and excepted to, and no sufficient specification of the particulars wherein the evidence was insufficient to justify the decision, nor any specification that the decision is against law. We have examined the notice with minute attention, and while it is not in the form which would have rendered it most commendable, it is sufficient. It becomes necessary, then, to look into the statement, with a view to determine if any errors were committed by the trial court in denying the motion for a new trial. Appellant claims that the court below committed error in submitting special issues to the jury upon the question of heirship, under section 1717 of the Code of Civil Procedure; and that as no written demand was made for a jury, the court erred in allowing one to be called and try the issues joined. The code provision referred to provides as follows: “If no jury is demanded, the court must try the issues joined. If on written demand a jury is called by either party, and the issues are not sufficiently made up by the writ