204 P. 385 | Cal. | 1922
On November 17, 1920, appellant served and filed a petition for the revocation of the probate of the will of the deceased, probated November 24, 1919, alleging that the will was procured by fraud and undue influence. Citation thereon was issued November 30, 1920. The executor moved to dismiss the petition for revocation on the ground that no citation had been issued within one year after the probate of the will as required by section 1328 of the Code of Civil Procedure. The appellant upon affidavits moved for relief from such failure on the ground of excusable neglect, and the court, after finding the facts as hereinafter stated, denied appellant relief and ordered the dismissal of the petition for revocation. The petitioner appeals from this order.
The question for our consideration is this: Was the delay of the petitioner for more than five days after the expiration of the year from the time of the probate of the will so far justified by the circumstances found by the trial court as to require a reversal of its order denying petitioner the relief sought and dismissing the petition? [1] The issuance of the citation is not jurisdictional, and the trial court had the power to relieve the petitioner from the failure *111
to issue such citation within a year, if in its opinion such a failure was the result of excusable neglect. (Estate ofSimmons,
It appears from the foregoing findings that the attorney representing the petitioner either overlooked the requirements of section 1328 of the Code of Civil Procedure or failed to call the attention of the clerk serving the papers to such provision.
In considering whether excusable neglect was shown, it should be observed that within ten days after the filing of the petition and within three days after the expiration of the year from the probate of the will, the clerk discovered that the required citation had not been issued within the time required by law, and within three days thereafter the attorney secured and served such citation. The requirement with reference to the issuance of citation within a year after probate upon such a petition for revocation differs from the ordinary rule with reference to the issuance of summons upon the commencement of the action and from the ordinary requirement with reference to the service of papers upon an adverse party who has appeared in the action, so that the special requirement might well have been overlooked or forgotten unless an examination of the code was made at the time of the institution of the proceedings for the revocation of the will.
It would seem clear that unless the entire burden of attending to every detail of practice is to be borne by the attorney in charge of litigation as distinguished from his clerks and employees that the neglect of the attorney in this case was excusable. It must be conceded that any attorney having a large practice must rely to some extent upon his employees for the conduct of the litigation intrusted to him, and the issuance and service of a citation is one of the matters which an attorney would be justified in confiding to a trusted employee, who was himself an attorney. In this case there is no reason for penalizing the petitioner because the delay was slight and the service *113 of the petition for revocation upon the executor gave prompt notice of the pending contest.
It is true that the trial court has a very wide discretion in granting or refusing relief under section
Order reversed.
Lennon, J., Shurtleff, J., Waste, J., Sloane, J., Lawlor, J., and Shaw, C. J., concurred.
Rehearing denied.
All the Justices concurred.