Carpenter v. Johnson

FOLEY, J. pro tem.* Alice M. Smith died in Watsonville, Santa Cruz County, California, on June 12, 1958. She left a will and codicil thereto. The will appointed Margaret G. Cobb executrix to serve without bond. Margaret Cobb, in writing, renounced her rights to letters testamentary and requested the court to appoint Charles H. Johnson, Public Administrator, as the administrator of the estate.

On June 25, 1958, Charles H. Johnson, respondent herein, filed his petition for probate of the will and codicil and for letters of administration with the will annexed. On June 30, 1958, Harry H. Carpenter, appellant herein and a nephew of the decedent, filed his petition for letters of administration with the will annexed. Hearings on both petitions were set for July 11, 1958, at which time the court admitted the will and codicil to probate and ordered the issuance of letters of administration with the will and codicil annexed to Charles H. Johnson, Public Administrator of the County of Santa Cruz.

On July 21, 1958, appellant Carpenter filed a notice of motion to vacate the order of July 11, 1958, appointing respondent Johnson administrator with the will annexed and for a new trial. The motions came on for hearing on September 5, 1958, and both motions were denied.

At the oral argument before this court a question arose as to the scope of the notice of appeal in this matter. Both parties were granted additional time to brief this question. This has been done and the cause stands submitted.

The first question which we are called upon to decide is whether or not an appeal has been taken herein from any appealable order.

The notice of appeal reads as follows: “To the Clerk of the Above Entitled Court : You will please take notice that [805]Petitioner, Harry H. Carpenter, hereby appeals to the District Court of Appeal, First Appellate District, State of California, from the Order Denying Motion to Vacate Order and for New Trial therein entered in the said Superior Court on the 5th day of September, 1958, in favor of Charles H. Johnson, Public Administrator, and against said petitioner; and from the whole thereof.” (Emphasis added.)

The notice to prepare clerk’s and reporter’s transcripts reads as follows: “To the Clerk op the Above Entitled Court : Please take notice that the petitioner, Harry H. Carpenter, in the above-entitled action has heretofore filed Notice of Appeal from the Order Denying Motion to Vacate Order and for New Trial in said action and hereby requests that a Clerk’s Transcript and a Reporter’s Transcript, consisting of the following documents on file with said clerk and reporter, be made up and prepared: