34 Cal. 682 | Cal. | 1868
The Probate Act does not require a service of the notice of appeal. It is provided by section two hundred and ninety-eight that the appeal “ shall be made by filing with the Clerk of the Probate Court a notice stating the appeal from the order, decree or judgment, or some specific part thereof, and by executing an undertaking or giving surety on such appeal, in the same manner and to the same extent as upon an appeal to the Supremé Court from the District Court,” etc. Service of the notice is not required by section three hundred, for it was not intended that the provisions of the Practice Act should supersede those of the Probate Act, or that the former should apply in any matter in respect to which express provision was made in the latter. One uniform mode of taking appeals to this Court is desirable, for it would greatly conduce to certainty as well as facility in practice.
The appeal is taken from the order of the Probate Court admitting the will to probate. The petitioner insists that the case cannot be reviewed on the bill of exceptions. The only exception found in the bill of exceptions is that taken to the order from which the appeal is taken. This mode of procedure, though unusual, is authorized by the Practice Act. An exception is an objection taken at the trial to a
The rule is uniform; and, indeed, it forms an essential part of the definition of an exception that it must be taken upon a fact or facts not denied. (Graham v. Cammann, 2 Caine, 168; Frier v. Jackson, 8 Johns. 507; Jackson v. Cadwell, 1 Cow. 622; Brewer v. Isish, 12 How. Pr. 481.) The reason of this is that the question or point of law, to the decision of which an exception lies, does not arise until the facts are determined.
The questions arising in the District Court on the trial of the issues, certified to it by the Probate Court, cannot be reviewed on this appeal, as this appeal is taken to correct'the alleged errors of the Probate Court, and not of the District Court. If it is said that error occurred in the proceedings of the District Court which ought to be corrected, the answer
One of the questions presented under the bill of exceptions is the alleged error in proceeding to order the will to be admitted to probate while an appeal from the District Court was pending. This question cannot be entertained, unless it clearly appears that such appeal was then pending.
Within the proper time after the filing of the notice of appeal, an undertaking was filed. This was of no avail, unless the sureties justified in the proper manner and within the required time, if exception was taken to their sufficiency. It appears, inferentially, but not directly, that such exception was taken. The contestants gave notice of justification, but the notice was too short, and they gave a second notice, and
There is a question in the case of much greater importance than the one just noticed. It has not been presented by counsel, but as it is a question touching the jurisdiction of the District Court, the decision of which may be of vast importance in the administration of the estates of decesed persons, and as a delay in the settlement of the question would be productive of great injury, we feel no hesitation in entertaining and disposing of it at this time. The only evidence presented by the petitioner on the hearing before the Probate Court, was the issues certified to the District Court, and the finding of the jury thereon. If the District Court had no jurisdiction of the matter, the verdict was a nullity, and in consequence thereof, there were no facts before the Pro-bate Court on which to base the order admitting the will to probate.
The issues were certified to that Court according to the provisions of section twenty of the Probate Act, as amended in 1861. (Stats. 1861, p. 630.) At the time of the passage of that Act, the Constitution conferred upon the District Courts jurisdiction to try such issues. The last clause of the section defining the jurisdiction of the District Courts, (Sec. 6, Art. VI, as it stood previous to the amendment of
The provisions of that section permitting issues joined or framed in the Probate Court to be certified to the District Court for trial, ceased to have any effect under the amendments of the Constithtion, for the want of power in the District Court to try them.
Order reversed, and cause remanded for further proceedings.
I concur in the judgment, of reversal on the grounds last stated in the opinion of Mr. Justice Rhodes, that under the Constitution, as amended, the District Court has no jurisdiction to try the issues of fact certified to it by the Probate Court for that purpose. It is important that the point should be decided now, in order that any legislation that may have been rendered necessary by the amendment to the Constitution may be had at the present session of the Legislature.