Karp v. Hopalong Cassidy, Inc.

SHENK, J. These are consolidated appeals from orders of the superior court sitting in the probate of the estate of Harry A. Sherman. The contestant Hopalong Cassidy, Inc., in action Number 23078 appeals from an order of August 10, 1953, vacating an order of June 22, 1953, confirming the sale [536]of personal property from the estate to Hopalong individually. The contestants in action Number 23115, who claim to be heirs at law and creditors of the decedent, appeal from an order of August 24 confirming for the second time the sale of the property to Hopalong.

Harry A. Sherman died testate on September 25, 1952. Jacob H. Karp was appointed and qualified as executor of his will. The testator provided in his will that the executor might “do any and all things necessary in the management and distribution of my estate as he, in his discretion, shall deem advisable. ’ ’ The estate consisted in part of 200,000 feet of film footage. The executor negotiated for and made a private agreement for the sale of the film to Hopalong for $5,000. He petitioned for and obtained the order of June 22d confirming the sale but he failed to serve notice of the hearing on the heirs and creditors appearing herein. (See Prob. Code, §§1200, 1202.) On motion of those heirs and creditors the order of confirmation was set aside and vacated by the order of August 10th, and the petition for confirmation of the sale to Hopalong was reset for hearing. Hopalong appealed from the order of vacation but the court nevertheless proceeded with the second hearing as scheduled and again confirmed the sale on August 24th. The heirs and creditors appeal on procedural grounds from the latter order of confirmation. That appeal will be disposed of first.

It is contended by the heirs and creditors that the appeal by Hopalong deprived the court of jurisdiction to entertain the second hearing on the petition to' confirm the sale. Section 946 of the Code of Civil Procedure provides as follows: “Whenever an appeal is perfected . . ., it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein . . but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from. ...” Hopalong contends that the two matters embraced different subjects because the first appeal tested only the propriety of the order vacating the original confirmation of the sale and the second appeal tested the authority of the court to approve the sale, and that such matters were purely collateral, supplemental, or independent of each other. (Cf. Hennessy v. Superior Court, 194 Cal. 368 [228 P. 862]; Estate of Waters, 181 Cal. 584 [185 P. 951]; People v. Hall, 115 Cal.App.2d 144 [251 P.2d 979].) This argument fails to recognize that it is the substantive issues of the hearings and not