Dunham v. Superior Court

WARD, J. A writ of certiorari was issued to review the action of the probate court denying a motion made under section 473 of the Code of Civil Procedure to vacate an order made confirming the sale of real estate. (Prob. Code, § 755.) An appeal was taken from the order denying the motion made under the aforesaid section 473, which was dismissed by the appellate court on the ground that the order of denial was not appealable. (Prob. Code, § 1240; Estate of Ryker, 92 Cal.App.2d 162 [206 P.2d 406].)

[508]It was stipulated that the record on appeal (92 Cal.App.2d 162) could be used by this court in determining the merits of the petition for certiorari. The clerk’s transcript on the appeal sets forth a notice of intention filed in the Superior Court of the City and County of San Francisco to sell “to the highest and best bidder” certain real estate in the estate of Hazel Ryker (the identical property described in the Code of Civil Procedure, section 473, proceeding). The notice is signed by the administratrix, May F. Dunham, and requires that all bids and offers should be submitted to the administratrix at a designated room in Mills Tower, San Francisco (4), California. The attorney representing the administratrix maintains law offices in Mills Tower. The report of sale and petition for confirmation are verified by the attorney for the administratrix allegedly “for the reason that said petitioner is outside the City and County of San Francisco,” and avers that he “knows the contents” of the petition. The report of sale and petition for confirmation set forth that: “Said sale was accomplished through Paul R. Weisenberger and by reason thereof said Paul R. Weisenberger is entitled to a 5% real estate commission in the amount of $837.50. Whebefobe, petitioner prays that this report be accepted and said sale be confirmed; that petitioner be authorized and directed to execute a deed of said property to said purchaser upon the payment by him of the unpaid balance due under said contract; that petitioner be authorized and directed to pay the sum of $837.50 as real estate commission on said sale to Paul R. Weisenberger, and for such other order as may be proper.” This allegation was made positively and is not on information and belief.

Following a hearing on the report of sale and petition for confirmation, the court made its order confirming sale, which in part provides: “It Is Hebeby Fubtheb Obdebed that said administratrix pay the sum of $837.50 to Paul R. Weisenberger as and for realtor’s commissions.” An order confirming the sale of property is appealable. (Prob. Code, § 1240.) However, no appeal was filed from the order confirming the sale.