Alma Investment Co. v. Lee

MUSSELL, J. On December 12, 1956, the administrator of the estate of Walter L. Lee, deceased, sold at private sale a parcel of real property belonging to the estate to Laurence DeTilla for the sum of $500. On January 23, 1957, the administrator filed a petition for confirmation of this sale and the petition came on regularly for hearing in the superior court on February 11, 1957. Laurence DeTilla was not present at this hearing. The court ordered that the property be sold to appellant Alma Investment Company, a corporation, for the sum of $550, as the corporation had increased DeTilla’s bid in open court by 10 per cent and there were no higher bids for the property. This sale was confirmed and the administrator was authorized to transfer and deliver the property to the appellant. On the same day the appellant paid the amount of its bid to DiGiorgio and Davis, attorneys for the administrator, and a receipt was given therefor. No deed to this property has been delivered to the appellant.

On March 5, 1957, Laurence DeTilla filed in the superior court a notice of motion to set aside the court’s order confirming the said sale to appellant. This motion was based on section 473 of the Code of Civil Procedure and on the ground that DeTilla was prevented from being present at the time and place of the hearing of said confirmation for the purpose [111]of protecting his bid and that his failure to be present was through mistake, inadvertence, surprise or excusable neglect. Affidavits of DeTilla and Naomi Dennis, one of the heirs, and of V. P. DiGiorgio were filed in support of the motion. Affidavits were also filed by Fred Drinkhouse, agent of appellant, and by the administrator. The matter was then heard on these affidavits and the court made and entered an order vacating and setting aside its previous order confirming the sale. This appeal followed.

Appellant claims that the court abused its discretion in vacating the sale to appellant and that the court further abused its discretion in failing to make the return of the purchase price to the buyer a condition to its order. These arguments are untenable.

In Estate of Herz, 147 Cal.App.2d 100, 106 [305 P.2d 278], this court held that relief under section 473 of the Code of Civil Procedure may be granted for the purpose of vacating an order confirming a probate sale. (Citing Estate of Moreland, 49 Cal.App.2d 484 [121 P.2d 867]; Estate of McCrae, 133 Cal.App.2d 634 [284 P.2d 914].)

In Estate of Moreland, supra, it was held that the probate court has power to vacate an order of confirmation of sale under section 473 of the Code of Civil Procedure on motion of either a prospective bidder or the administrator. In that case the administrator had by inadvertence and mistake notified both the original and a prospective bidder that the hearing upon the return of sale would be held on a certain date instead of the day for which the hearing had been duly noticed and in fact was held. Relief was granted under section 473, and the court said: “It is the settled law that the section is addressed to the legal discretion of the trial court ‘ and in the absence of a clear showing of abuse in the exercise thereof an appellate court will not disturb the order of the court below, ’ ...”