58 P. 549 | Cal. | 1899
Appeal by the executors of the testator's estate from an order making partial distribution to certain legatees and directing a certain sum to be paid to the county *249
treasurer of Stanislaus county as collateral inheritance tax. The cause was here on a former appeal, and the facts are quite fully stated in the opinion on that appeal and need not be repeated at this time. (Estate of Mitchell,
When the order of February 27, 1897, was reversed it no longer had any vitality or force, and the result was to leave the proceeding where it stood before that order was made. (2 Freeman on Judgments, sec. 481.) The order of September 11, 1896, denying the petition, thereupon came into full force and effect, and it has never been vacated or set aside. The subsequent order granting the petition did not operate to vacate the order of September 11, 1896, denying the petition. (Freeman on Judgments, sec. 104a.) As was said in Nuckolls v. Irwin,
2. But, aside from this view of the matter, the objection to the order of February 27, 1897, as well as to the order of August 29, 1898, from which this appeal is taken, already briefly referred to, stands in the way of affirming the latter order. The notice of the motion to vacate the order of September 11, 1896, and the notice of the second motion to hear the petition were served only upon the executors. No notice was given by posting as prescribed by section 1663 of the Code of Civil Procedure. After the order of September 11, 1896, denying the petition was made, the legatees, by their motion to vacate that order, had failed and the order was left *252 in force, there was no way open to them to have their petition heard except by pursuing the statutory method requiring notice to be posted. Service of the notice of the motion upon the executors alone was not sufficient. There were other legatees and there were creditors. The first order denying the petition was favorable to them, but the subsequent order granting the petition was adverse to their interests. They should have had an opportunity to be heard, and we do not think that notice to the executors gave them such opportunity, for the executors did not represent them. Section 1663 requires notice to be given by posting, presupposing that others than the executors might have an interest adverse to the petition. It is true that they did not appear in response to the first notice of the hearing, which was duly served, and they would be and are bound by the order then entered. But after the legatees had failed to appeal from that order, and had also failed in their attack upon it by motion, we think the court lost jurisdiction to further act except after new notices had been given as required by the statute. The legacies bequeathed to other legatees amounted to about three hundred thousand dollars; there were unsecured creditors of considerable amount; and, although apparently the estate was solvent, these other legatees and the creditors had an interest adverse to the petitioners who asked for payment at a time when all could not be paid, and were thus to be preferred in point of priority of payment.
We advise that the order be reversed.
Britt, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the order is reversed. Harrison, J., Van Dyke, J., Garoutte, J.