*1 communicating Dottenheim, he was of Dasteel and claims controversy. subject of with the Davises a relies, strongly plaintiffs on his that claim Petitioner to make a entitled settlement with defendants the absence regardless the consent and without counsel contingent right fee such contract. existence of on the plaintiffs, however, justify peti- could not or excuse in communicating opposing conduct parties tioner’s with the concerning subject contrary of controversy, to rule when he knew had counsel of record who had not consented thereto. of all
In view the circumstances, it cannot be said that of three suspension months is too harsh.' is therefore petitioner be suspended ordered practice from the period this the law state for months, three effective days filing after the of this order. 21455. Bank. A. No. Oct.
[L. 1950.] al., Petitioners, KRAMER ERNST v. SUPERIOR COURT Respondent. COUNTY, OF LOS ANGELES Hays for Petitioners. Emmet B. Power, Attorney General, and William J. Howser,
Fred N. Attorney Respondent. Deputy General, for to annul proceeding certiorari SHENK, J. This isa *2 the decree of distribution a motion to set aside Kramer, deceased. of Bruno M. the matter the estate of Germany. petitioners nationals and residents of are County Angeles on March in Los The decedent died community and entirely real 1948. The estate of consisted assets, liquid and the personal property. converted to was specific bequests charges of administration residue after approximately $60,000. By will, his admitted amounted to of the 20, 1948, one-half April on the decedent left to his own wife and the othеr half residue to his deceased residing Germany. relatives eastern named rights of to take under the will are following provisions of governed section 259 of the Probate Code: residing within right
“The of aliens not the United States property in this State ... take real succession or tes- tamentary disposition, upon the sаme terms and conditions citizens of dependent as residents and the United States is reciprocal upon right upon the existence of a each case property of States to take of citizens real as upon the same terms residents and conditions citizens respective countries of which such aliens are of the residents residing in right of aliens not the United . . States . personal this State succession or to take tes- upon tamentary disposition, the same terms and conditions as dependent citizens of the United States is residents and upon reciprocal right upon the existence of a еach case personal property to take part of citizens of the United States conditions as upon same terms and residents' and citizens respective of which such are residents.” of the countries aliens provides the burden is the non- Section 259.1 recip- resident aliens to establish the faсt existence rights reciprocal rights. rocal Section 259.2 states that if such if no heirs other than such aliens are found to exist and disposed property, it eligible to take the shall be found property. of as escheated validity foregoing provisions,
The constitutional
death,
applicable as of the date
the decedent’s
been
L.Ed,
upheld. (Clark Allen,
S.Ct.
U.S.
Knutzen,
170 A.L.R.
Estate
There was no from the decree. Within six months entry, September 2, 1949, after moved pursuant to section 473 of the Code Procedure to set Civil having aside the against through been taken them *3 mistake, their inadvertence, surprise or neglect. excusable bearing factors on these elements were to averred be lack of knowledge the they other than that were resid uary legatees, surprise and of that the executor would take position contrary interests; their lack knowledge alsо required would be prove reciprocal rights the residing German citizens representa abroad which the state’s admits, tive at least realty, incorporated as to were in an existing treaty between Germany. the (Se United States and e Allen, Clark supra, 503.) 331 U.S. There no averment required by that the notices given, law were not or were not in received appearance, par sufficient to make time an or to ticipate probate in proceeding, the appeal or to take an from the decree of distribution. The statement in that fact respect is that required by the notices not sent to specified the addresses will, the nor to the actual addresses the residuary legatees, supplied but to addresses from some unknown and unauthorized regard source. In to the time element, distance was also relied on. the denying nonappeal
Since the motion was able, position were in remedy to invoke the afforded proceeding. (Prob. 1240; Code, § Superior Howard v. Court, ; 849] Cal.App.2d 9, Linstead only sought granted if it 355].) But the relief could be be denying shown court in the motion to set that the (Code jurisdiction. Proc., its aside the decree exceeded Civ. 1068; cited.) Under the authorities and cases hereinafter § entertain the herein cited the court deny grant application or the exercise motion and to Code, discretionary (Prob. 1233; Code Civ. power. its § Proc., 473.) § from pointed appeals that on orders under has been out favorably disposed toward
section 473 the have been courts on trial courts which would relieve action adjudica permit, prevent, from rather than default and merits; grant orders tion of on and that controversies only ing rarely for an relief have been reversed and then Mfg. Co., 31 (Benjamin v. Dalmo abuse discretion. Reidy 593], cited; cases see also 69; Co., Cal. Scott, Mitchell v. etc. S. S. Cal. California White, Cal.App. 590], P. and Brasher v. denying relief were appeal where on orders P. it well that certiorari reversed.) addition settled jurisdiction alleged lie excess of relates not where the Cal,2d Kay, insufficiency of the evidence. Superior Court, supra, 25 Howard v. motion 789.) Here Cal.2d at acted light affidavits сlaimed to of the facts stated neglect. surprise mistake, inadvertence, or excusable constitute comprised upon which the court Those the evidence statements might the result be the motion. What based its order order, or the decree of appeal on an whether from such if one hаd might have been reversed equitable taken, might considerations been or what grounds, attacking decree on available or proper action might proceeding, an escheat what result in proceeding. The deter questions properly in this presented presented basis is no reviewable minаtive factor here is that *4 judicial of its probate court’s exercise upon the attack jurisdiction lacked power. It said that court cannot be and there before it to make order based on the evidence ground not is no the court’s action was contention that authorized statute. is affirmed. J., concurred. Edmonds, J., Spence,
Gibson, J.,C.
163 TRAYNOR, J. I concur conclusion that certiorari propriety denying does not lie to review the the order A aside the decree of motion to distribution. motion to set judgment 473 is set aside under section to the addressed hardly court and “it need sound discretion trial on certiorari we do not added that review matters within the Kay, discretion of 30 the lower court.” Cal.2d Court, Superior Howard v. 215, 1]; 226 P.2d 25 Cal.2d [181 Spanach Superior 784, Cal.2d [154 447, P.2d444].) 450 [50 however, contended, the decree distribution must adequacy regardless petitioners’
be set aside show- ing mistake, inadvertence, or surprise, for the reason that jurisdictiоn court had no to enter such a decree. petitioners Thus, merely do not attack the order 473; they under motion section invoke the writ of certiorari support collateral attack the decree of distribution. purpose, will not lie for Certiorari court jurisdiction had petitioners enter the dеcree and had a remedy by appeal. erroneously decree of distribution excluded obtaining
from the real under the will of decedent. appealable, decree was however, could have secured its reversal had timely taken a appeal. (Estate Knutzen, 573, Cal.2d P.2d 747]; Estate of Bevilacqua, 580, Cal.2d P.2d 752].) Certiorari remedy by not lie when a appeal has been lost aggrieved failure of party to avail remedy himself of the (Phelan within Superior permitted. the time Court, Cal.2d
Moreover, certiorari will not
lie to annul a decree of a
jurisdiction
of competent
court
for errors of fаct or law in
entry
of that decree.
If the trial
jurisdiction
court has
particular
issue,
determine
it is
deprived
juris-
diction
an erroneous determination.
The error must be
asserted on
(Abelleira
petition
and not
for certiorari.
v. District Court
Appeal, 942, 132 A.L.R. Brock Court,
which created 259. Failure to by takе Code, Probate section appeal, juris- is not may is error but it asserted appeal. (Howard dictional. is not substitute Certiorari Superior Court, 25 Cal.2d power complained lie “where excess ’’ unsupported entering is the of an evidence or based Kay, 30 on an error of law. Appeal, suprа; District How- Aielleira v. Court of Superior Court, Brock v. Court, supra, 789; ard v. supra.) of distribution is that the decree result of of decedent to which in the estate deprived of a share final, however, clearly The decree become entitled. Petitioners contend that effect judicata. is res
and disregarded must be because what judicata of res doctrine inequities arising the erroneous out they consider judicata from res departure Such of distribution. decree finality any judgment thus into throws run than injustice long more infinitely is bound cause I therefore concur conceivably in this case. it avert can of the order. аffirmance CARTER, J. I dissent. country citizen of this died resident and
In this case a in this state to German na- leaving property situated testate property. of real consisted The estate tionals. any property did not distribute of distribution They sought relief from that decree the alien devisees. of the Code of Civil Procedure. section 473 motion under appeal lies from the order As no relief was denied. Such questions “jurisdictional” be reviewed as to denial it can proceeding. is the certiorari, and that annulled majority order cannot be hold that denial con- jurisdiction under section had because surprise, inadver- matters such as and determine sider factual neglect. At real tence, least as to the and excusable The status no to be determined. there were matters factual devisees, disputed; nor is such, as as is not of the aliens of real disputed portion of the estate consisted it treaty applicаble between property. If there existed controlling, regardless country Germany it this did exist such of the Probate Code. There section Knut- treaty covering real in Estate property, and, as said declaring zen, when Supreme announced States Court in Allen, 331 91 L.Ed. Clark v. U.S. 503 S.Ct. : “The alien heirs nonresident were entitled A.L.R. 953] treaty realty proceeds, to sell withdraw the
under *6 by and it is immaterial the the that was admin sold istrator, apparently get pay expenses, funds to debts and by event, of instead those heirs. In either entitled proceeds to share in the realty, Property the and the Alien of Custodian was entitled claim their of shares reason thе vesting (Emphasis order.’’ added.) treaty proven.
The existence and of need not be terms the judicial court was bound to take thereof. provides: judicial Our statute “Courts take notice of the following (3) private . facts: . . Public of acts the official legislative, judicial departments executive and of this state the States, and the laws the several states interpretation United States and the thereof the highest appellate jurisdiction courts of states,” (em- of such phasis added) (Code Proc., Civ. (3)) 1875 and the authori- § ties hold that courts take (See notice of treaties. cases collected, Wigmore Evidence, ed.) (3d IX, vol. § p. 556.) clear, It is therefore, that the court had no discretion grant relief, but to for it had rendered a decree contrary treaty—the supreme to the law treaty A land. par is on the being supreme Constitution as law of the land. is, therefore, may whether an order be undisputed
annulled on certiorari which, on
facts,
squarely
is
contrary
my
to constitutional
opinion
mandate.
there can
be no
Army
doubt about
in
it.
It is said
Municipal
Rescue
v.
Court, 28
Cal.2d
462
“The constitution
[171
8]:
ality of a
may
statute or
ordinance
prohibition
tested
ground
invalidity
legislation
goes
to the
jurisdiction of the
try
court to proceed to
(Sеe
the case.
Whitney
Superior Court,
v.
diction prohibition proceedings judgment does mean that open to collateral based an unconstitutional statute prohibition proceedings attack. In certiorari ... may very meaning, and a writ jurisdiction term broаd has a except has no to act granted where the court though jurisdiction, particular manner, even it has subject parties. sense, over the matter and the fundamental Appeal, District Court (Abelleira v. Superior Court, Hill v. seq. 942,132 A.L.R. Fortenbury ” decree of 411].) Here the distribu treaty and the clearly ignored and failеd follow tion the land. treaty supreme Constitution makes such On supreme law. Therefore, is in violation such by the only permissible action motion under section order distribution the decree and trial court to vacate treaty. with the accordance grant would, therefore, prayed the writ for.
I *7 Dissenting I conсur the conclusion SCHAUER, J., circumstances Under the shown Carter. reached Justice power” decide the I court had “defined here think that the example way. one For clear crucial under which adequate circumstances discussion exceeded its properly be held to have should dissenting opinion in jurisdiction (“defined power”) see seq. Kay (1947), rehearing for a was denied Novem- application Petitioners’ rehearing. Schauer, for a J., J., voted 13,1950. Carter, ber