Schwerin v. McCarthy

MARKS, J. The amended notice of appeal in this proceeding contains the notice that appellants “appeal to the [399]Supreme Court of the State of California from that certain Order made and entered in said cause June 17, 1936, denying the application of said parties for continuance, and the further Order Denying Alleged Lost or Destroyed Will to Probate and Dismissing Petition to Probate Said Will. Said parties also appeal from the Order of said Court made and entered August 12, 1936, denying the motion of said parties for relief under Section 473 of the Code of Civil Procedure and refusing to vacate the said judgment of June 17.” The only order denying probate in any of the records to which this notice can be directed is dated June 12, 1936. We are not informed when it was entered. We have disregarded the variance in dates in the notices of appeals.

The bill of exceptions in this matter is directed entirely to the order made on August 12,1936, which will be considered here. Our opinion in Estate of McCarthy, in our Civil No. 2049, this day filed (ante, p. 395 [73 Pac. (2d) 913]), has disposed of the other matters presented by the notice of appeal.

Many of the pertinent facts of this case are set forth in opinions this day filed in the cases bearing our Civil Nos. 2056 and 2049, entitled, Estate of McCarthy, ante, pp. 389 and 395 [73 Pac. (2d) 910 and 913], and will not be repeated here.

On August 12, 1936, appellants, represented by counsel, presented their motion under section 473 of the Code of Civil Procedure, for relief from the order of the Honorable L. N. Turrentine, Judge, denying their motion for a continuance and denying the petition of Francis C. McCarthy, in which he was assisted by his mother, for probate of the alleged lost or destroyed will of December 27, 1934. The trial court denied the motion for relief.

In Startzman v. Los Banos Cotton Gins, 82 Cal. App. 624 [256 Pac. 220], a ease where defendant was not represented by counsel at the trial and subsequently moved to have the judgment rendered against it vacated under the provisions of section 473 of the Code of Civil Procedure, it was said:

‘‘It is the settled rule that whether a motion to vacate a judgment on the ground of surprise, inadvertence, or excusable neglect shall or shall not be granted is a matter which rests in the sound discretion of the trial court, and that the order either granting or denying the motion will not be dis