Youlian v. Williams

CARTER, J. In this proceeding appellant Nadia Williams qualified as special administratrix of the Huitín estate on July 14, 1944, furnishing a bond in the principal sum of $7,000. She presented to the court for probate a witnessed will of the decedent. Respondents contested the admission of that will to probate on the ground of fraud and undue influence and presented for probate an earlier holographic will of decedent which appellants contested. The two contests were heard and respondents were successful in having the holographic will admitted to probate and respondent Jack Youlian was appointed executor of the estate without bond pursuant to that will. The orders in the contest proceedings (hereinafter referred to as first order) and the order appointing [341]Youlian executor (hereinafter referred to as second order) were entered on June 5,1945. Notice of entry was served and filed on June 18, 1945. A notice of intention to move for a new trial in the contest proceedings was filed and bears the clerk’s filing date of June 29, 1945, apparently a day late. (See Code Civ. Proc., § 659.) That motion was heard on August 7, 1945, by Judge Beardsley, the trial judge. On August 14, 1945, Judge Blake, the presiding judge of the Superior Court in Los Angeles County, made ex parte, upon motion of appellants, an order reading in part as follows: “Upon reading and filing the affidavits of Nadia Williams, Marie Antoinette Griffith and Myrven P. Gift, and the evidence of the cheek dated June 28, 1945 being before the Court, and good cause appearing therefor, It Is Ordered and Declared that the fee of $9.00 for filing the Notice of Motion of Intention to move for a New Trial in the above entitled matter was filed within time and that therefore the Motion for the New Trial may be heard upon authority of [Commercial] Nat. Bank v. Schultz [Schlitz], 6 C.A. 174 [91 P. 750].” On August 16,1945, the trial judge denied the motion for a new trial and in the order of denial also ordered (hereinafter referred to as third order) the vacation of Judge Blake’s order of August 14, 1945. On November 5, 1945, the trial court ordered (hereinafter referred to as fourth order) appellant Williams as special administratrix of the estate to deliver the assets of the estate to respondent Youlian, executor. Purported appeals are taken from the first, second, third and fourth orders.

Appellants applied to this court in December, 1945, for a writ of supersedeas staying the execution of the fourth order pending appeal, and in January, 1946, an order to show cause in March, 1946, why the writ should not be granted, was issued by this court and all proceedings on the judgment and order appealed from were stayed pending final determination of the matter. Respondents answered the petition for a writ of supersedeas urging that the appeal was too late, the notice to prepare the trancript was not timely and the notice of appeal was not signed by the attorney of record. Respondents also noticed for hearing in March, 1946, a motion to dismiss the appeals on the grounds that as to the first order the notice of appeal and request for a transcript were late, and the transcript was not filed in the time required by law;