In re the Estate of Joseph

CHIPMAN, C. Deceased died testate. A document purporting to be his last will was admitted to probate February 17, 1888, and the executors named therein were duly appointed. It does not appear whether or not the estate has been distributed. On December 13, 1894, appellant, one Wesley J. Lovett, filed his petition to revoke the probate of said will and contesting the same. Issues upon the merits were framed and were in condition to be tried, whereupon the executors, by their attorneys, served notice upon appellant that they would move the dismissal of appellant’s said petition, on the ground that “due and legal notice was served on said attorneys of said Lovett, on the fifteenth day of June, 1895, to file with the clerk of the above-named court an undertaking, as is provided for in section 1036 of the Code of Civil Procedure; that more than thirty days have elapsed since the service of said notice, and the said undertaking has not been filed.” At the hearing of the motion it was admitted by appellant that he had not filed the undertaking referred to. It rvas also admitted that appellant is a citizen of the state of Ohio. The court granted the motion, and entered an order dismissing the petition of appellant and the contest. The appeal is from this order, and comes up on bill of exceptions.

[661]Appellant claims that section 1036 of the Code of Civil Procedure applies solely to actions and not to special proceedings; that a proceeding to revoke the probate of a will is a special proceeding, and is not an action within the meaning of this section oí the code.

Appellant also claims that, if it should be held that sections 1036 and 1037 of the Code of Civil Procedure apply to proceedings to contest the probate or validity of a will, then those sections are in violation of article IY, section 2, and article XIV, section 1, of the constitution of the United States.

Respondents contend that proceedings to contest a will, both when first offered to probate or later after probate, are in their nature civil actions and possess all the elements of an action; that section 1312 of the Code of Civil Procedure declares that: “On the trial the contestant is the plaintiff and the petitioner is the defendant,” which is mandatory because thK proceeding is in the nature of a civil action; that section 1314 of the Code of Civil Procedure denominates the proceeding as a “case,” and a “case” is a suit or action—a cause (citing Burrell’s Law Dictionary, 253); and finally respondents claim that the whole question is disposed of by section 363 of the Code of Civil Procedure, which provides that “the word 'action/ as used in this title, is to be construed, whenever necessary so to do, as including a special proceeding of a civil nature.”