Wilhelm v. Visel

WOOD (Parker), J. Appellant Harry Wilhelm, son of Eliza Wilhelm, deceased, was entitled to a share of her estate. The final decree of distribution in her estate was made on December 10, 1953. That decree is not included in the record on appeal, but the record indicates that the decree approved two assignments by appellant of portions of his share of the estate, and that the decree ordered distribution of the amounts of the assignments to the assignees.

On June 1, 1955, appellant filed, in the probate proceeding, a “Notice of Motion and Application for a Writ of Error Coram Nobis to Vacate Portion of Pinal Decree of Distribution,” which portion approved the assignments and ordered distribution of the amounts thereof to the assignees. A minute order of July 26, 1955, recites: “Motion Denied Court finds probate court has no jurs.” It appears that an attorney was directed to prepare an order to be signed by the judge. A signed order, filed August 19, 1955, recites that the motion and application are dismissed.

The notice of appeal (filed August 1, 1955,—before the signed order was filed) herein states that the appeal is from [804]the order of July 26, 1955, sustaining objections to the motion for a writ of error coram nobis. (The record on appeal does not show that there was such an order.) The notice to the clerk (filed August 10) to prepare papers on appeal states that petitioner appealed from the order denying his petition for a writ of error coram nobis. (There was no notice that an appeal was taken from the signed order of August 19, 1955.)

Appellant also filed a “Notice of Motion to Vacate Portions of Final Decree of Distribution Upon Equitable Powers of Court for Extrinsic Fraud.” The motion was dismissed. There is no appeal from that order.

The notice of motion stated, in part, that appellant would move for a writ of error coram nobis vacating the final decree of distribution “as to that portion assigning $5,000.00 to Bernice Hoffman Glick and that portion assigning $5,000.00 to Georgiana N. Visel, Administratrix of the Estate of Stanley Visel of the interest of Harry Wilhelm. ’ ’

At the hearing upon the motions no testimony was presented. The reporter’s transcript shows that there was a discussion as to whether the superior court, in the exercise of its probate jurisdiction, was empowered to issue a writ of error coram nobis. That transcript also shows that it was stipulated that the only matter submitted to the court was whether the court had jurisdiction to issue such a writ.