Griffin v. Warner

48 Cal. 383 | Cal. | 1874

By the Court, Crockett, J.:

The point made by the appellant that the order of June 19, 1865, was made by the Judge at Chambers and not in open Court, is not sustained by the record. Nor was the order void because made after the lapse of the term. On refusing to confirm the first sale, it was in the discretion of the Court either to order a nevf sale or to accept Warner’s bid. (Probate Act, sec. 169.) Instead of doing either, the Court merely vacated the sale, and held it as null and void, and continued the proceedings until the next term. It is admitted that all the proceedings were regular up to the time when this order was entered. The Court still had jurisdiction to order the sale of the land, the proceedings being yet in fieri. It is apparent the order was founded solely on Warner’s offer to pay a larger price for the land, and not upon any supposed defect or irregularity in the prior proceedings. The legal effect of the order, as we construe it under the circumstances disclosed in the record, was merely a refusal by the Court to confirm the first sale, because Warner had offered a larger price—reserving for future determination the question whether Warner’s bid should be accepted or a new sale ordered. Adding to the order the further clause that the sale was null and void, was evidently the result of inadvertence, as is apparent from the subsequent order of June 19, 1865. It would, we think, have been sufficiently clear, however, if the last order had not recited the inadvertence. It is evident from the record, without the aid of the last order, that what the Court intended to declare by the first order, was merely that the first sale'was not approved, and the cause was continued for further proceedings. This and nothing more being the legal effect of the first order, the Court had jurisdiction, at a subsequent term, to accept Warner’s bid. This- disposes of the case, and the other points urged by counsel need not be noticed.

Order granting a new trial affirmed.

Mr. Chief Justice Wallace concurred specially in the judgment.