McMillon v. Clayton

WHITE, P. J. Ethel Rowe Clayton, respondent herein, claiming to be the widow of Walter Clayton, deceased, filed a petition for the probate of his will, whereupon the appellants herein, nephews of said deceased, filed a contest, alleging that the purported will was not executed by decedent as his last will and testament, that proponent was not the wife of decedent, and that his signature thereto was secured by fraud, duress and undue influence. On January 25, 1951, the trial of the issues thus raised came on for hearing, at which time it was continued to May 8, 1951, on which latter date the contestants failed to appear, and on the evidence presented by respondent the will was admitted to probate and respondent was appointed administratrix with the will annexed. Thereafter contestants and appellants filed a motion under section 473 of the Code of Civil Procedure to vacate and set aside the order admitting the will to probate and granting letters of administration with the will annexed, upon the ground that such orders were taken through mis[525]take, inadvertence, surprise and excusable neglect. Prom the order denying their motion, contestants have appealed.

The rules applicable on appeal when a motion under section 473 of the Code of Civil Procedure has been made and granted or denied are so well settled in the law of this state, not only by earlier decisions but by more recent pronouncements of the Supreme Court and the District Courts of Appeal, that repetition or elaboration thereof is wholly unnecessary in the decision of this appeal.

The only showing made in support of the motion was by affidavit of contestants’ counsel, the pertinent portions of which are as follows:

. . That affiant prepared an affidavit to take the deposition of the respondent Ethel Rowe Clayton at his office on January 15, 1951. That a subpoena was served upon said Ethel Rowe Clayton and the deposition was duly set for the aforesaid date. That prior to the date for the taking of the deposition, respondent’s attorney, Noel Edwards, called affiant on the telephone and stated that he would be out of the city on that date on a vacation and requested of affiant that the deposition of Ethel Rowe Clayton not be taken on the date set as he would be caused a great inconvenience. That affiant informed said attorney that he could not safely proceed to trial without first taking the deposition of said Ethel Rowe Clayton. That said attorney stated that if the deposition went off calendar upon his return he would make his client available for the taking of her deposition prior to the trial of this matter. That affiant was led to believe and did believe that the said attorney would allow the deposition of his client to be taken prior to any trial of the contest of the will. That no deposition of said Ethel Rowe Clayton has ever been taken, nor has said attorney made or offered to make any arrangements for the taking of his client’s deposition. That affiant was of the opinion and did believe that said attorney would not proceed to trial until the deposition of said Ethel Rowe Clayton had been taken.