Huesby v. Lawrence

WOOD (Parker), J. This is a motion to dismiss an appeal. Appellants were contestants in a contest of a will before probate, and respondents were proponents of the will. There [707]were two trials. In the first one the jury failed to agree and a mistrial was declared. In the second trial, before the court without a jury, it was ordered that the will be admitted to probate. As a part of the judgment it was ordered that respondents recover their costs from appellants. The amount of the costs was $481.30, and included the costs of respondents in the first trial. The judgment was entered July 6, 1943. No motion for a new trial was made. On July 20, 1943, appellants filed a motion to vacate that portion of the judgment allowing costs to respondents. The motion was heard on July 27, 1943, and was denied September 27, 1943. On November 2, 1943, appellants filed a notice of appeal from “that certain order made ... in the above-entitled action upon the motion of the above-stated parties to Vacate Portion of Judgment of the Superior Court which Motion was heard on the 27th day of July, 1943, and which said Order was entered on the 10th day of September.” The notice by the appellants to the clerk to prepare transcript on appeal also stated that the appeal was from an order entered on September 10, 1943. Neither the notice of appeal, nor the notice to prepare transcript on appeal, stated that the appeal was from the order filed September 27, 1943, denying the motion to vacate a portion of the judgment. The record does not show that any order was entered or made on September 10, 1943. It will be assumed that the appeal herein was from the order, filed September 27, 1943, denying the motion of appellants to vacate the portion of the judgment relating to costs. The record does not show that a notice of appeal from the judgment or any part of the judgment was filed. If the notice of appeal, above referred to, which was filed on November 2, 1943, could be interpreted as an appeal from the judgment entered on July 6, 1943, or a part thereof, it was not filed within the time allowed by law. Said notice of appeal, filed on November 2, 1943, was within sixty days from the date said motion to vacate was denied on September 27, 1943.

The motion to dismiss the appeal is made upon the ground that the order appealed from is not an appealable order.

Appellants assert that the portion of the judgment allowing costs was void, in that, the statute applicable to costs in a will contest before probate, section 1232 of the Probate Code, does not authorize an allowance of costs until the final