*1 Aug. 29, A. No. 17598. In Bank. [L. 1941.] HENRY al., J. O’DAY THE OF et SUPERIOR COURT Respondents.
LOS et al., ANGELES COUNTY *2 and Andrews, Harris, B. W. Earl Shafer Claud John Leo Mosher & Shafer for Petitioner. O’Connor, Moroney County
J. H. and Counsel, J. F. Mackin, Deputies County Purdum, Counsel, Ernest Frank J. Lake, McDowell, Bailie, & Faries, Faries David R. Turner & Turner, Salisbury, Himrod, Richard A. & William Robinson Himrod, Wayne Files, B. Freston & R. Hackett and Charles Loring Respondents. A.
EDMONDS, J. two of the numerous claim Petitioners are ’Dea, (Estate ants to the estate of Michael F. O deceased. O’Dea, (2d) 637, (2d) ; 15 Cal. Pac. Marlow [104 368] Superior Court, (2d) (2d) 11].) In a pending which is and unde cided, against of dismissal was entered them. They appeal entry did five months but some after its moved under of the Code Civil Procedure that § judgment be vacated. Their motion was denied order nonappealable. (Estate O’Dea, supra.) was held to be They writ commanding seek a of mandate now court, notwithstanding dismissal, to hear and heirship. their claims to determine judgment of appears that after the dismissal was ren- attempted petitioners file a dered, second claim to heir- exactly ship. claim is the same terms as This the one which judgment. clerk, The acting dismissed under an present file it. In refused to order charge that ceeding there is no statutory au- thority heirship proceeding, for a judgment of dismissal in an jurisdiction it is hence an act excess of the of the court and participation proceeding. their further does bar in that As ground a further for the of the issuance writ, permit file them contend that the court must present thereon. the second claim evidence determining heirship is contained procedure for The Code, 1080- chapter Probate which includes XVII of the §§ Proce- Civil 1664'of the Code of based former § when the time to file claims provide that dure. These sections expired is not in a condi- but the estate has estate may file claiming to be an heir closed, any person tion to be petition claim. clerk shall setting forth set his any person may and file matter for No setting forth his interest estate. written statement appointed the necessary. At the pleadings objection petition it, shall court shall hear the When heirs, specifying who are their interests. final, upon the de- is conclusive matters this decree becomes termined. Probate Code in a different
By another section *3 joined proceedings probate in fact chapter “All issues of requirements of the rules conformity with the in must be tried 1230.) of (§ These “rules practice in civil actions.” of specified 1233 which particularly practice” are more § ‘‘ provi- code, provided the Except this otherwise reads: applicable part II of Civil Procedure the Code of of sions proceedings practice in rules of the constitute the to and ap- trials, trials, regard new code with to this mentioned proce- of appeal, and all other matters peals, records on Procedure provisions the Code of Civil One of the of dure.” “by party the when either fails a authorizes appears asks party the the trial to 581.) (Code Procedure, of Civil dismissal ...” for § not language of 1233 broad and all-inclusive. is It The § to “all other only to “trials” but also matters of refers ’’ question Therefore determination concern- cedure. authority of the court dismiss claim to ing the 1080-1082 upon contain within themselves whether turns §§ determining heirship, procedure exclusive for complete being pari should construed as materia or whether general 1230-1233, supra, making applicable thus with §§
543 practice, provision for a of including rules of dismissal. Procedure,
Former 1664 of the Code of Civil which § 1885, enacted in 1080-1082 of Probate §§ procedure based, Code are for conduct outlined a detailed provision notice, appear- of hearings, including for ance, entry pleadings, defaults, filing limitation of time for appeals, costs, Upon and other matters. enactment of 1931, proce- Probate Code most of these detailed items of fact, dure were 1080-1082. omitted from the new That §§ however, dispense is not indicative of an intention with procedural steps these hearings but rather of procedure an intention that essential matters of expressly by the language covered 1080-1082 should §§ governed by practice rules actions civil contained in Procedure, applicable by Code of Civil 1230- made §§ 1233, supra. compel Other considerations conclusion. 1931,
Prior
unquestionably
right
the court
had the
judgments
enter
of nonsuit or dismissal in
heirship (Hitchcock
Superior Court,
v.
295
Cal.
Pac. 872];
Kasson,
;
Estate
[14
Cal.
Pac. 436]
[74
former
Procedure).
provisions
Code of Civil
§
the new
clearly
enactment
ap
show intention
state
plicable
procedure
rules
general
terms rather than
particular specification in
may
order that they
conform, as
nearly as is consistently possible, to those for civil actions.
weight
No
should be
argument
accorded the
rules of
practice
civil
govern
should not
an heirship hearing
because
a proceeding
adversary,
nature
action,
a civil
but
essentially
in rem de-
termine those entitled to inherit the
assets
an estate.
jurisdiction
true that
jurisdiction
court is a
in rem. The res is the
estate,
object
decedent’s
and the
probate and administration proceedings is to
distribu-
secure
tion to the
entitled to share in
(Edlund
the estate.
Superior
v.
Court,
Such is a to determine which a proceeding constitutes, in rem but to a certain essence also extent, adversary claimant to an First of all the contest. own must take affirmative action to establish his relationship right, flowing from that to the decedent and his estate, Second, may relationship, inherit the the res. he alleged then contest the claims of other heirs in the same conflicting degree relationship. a closer When claims par- adversary an one involved the becomes (Estate Kasson, nature of of the a civil action. takes Friedman, 237].) supra; Pac. Estate Cal. [160 ease, recognized in Friedman This character was the dual suc- was a decedent, a cession to the estate of where the said: proceed- person filing complaint “Each a or answer line setting up estate distinct ing, and title to the whole a necessarily against all kinship, an actor for himself and claim is the entire estate. His who also claim others, each antagonistic the claim of to that of all the every respect to him. With antagonistic of the others pre- interest, alleging an the case stands other claimant so him and that cisely was between same as if the contest against every man, person ‘His hand alone. will . does not stand every him’. . . The case man’s hand position ordinary case where precisely in the same necessarily victory for the other. results defeat one presented claimant In kind the defeat of one cases of the here leaving others merely contest, him from eliminates less, an adverse finish, each is fight it out to the but none appeal of the entitled to attack the party the other ’’ other. 3 of subd. that as Petitioners further contend § judg- entry only Procedure authorizes Code of Civil party appear on the “when either fails ment ’’ because at entered invalid trial, here A con- entry the “trial” had commenced. of its support con- “trial” which would of the word struction Generally meaning. too gives it much limited clusion proceed- rulings all a court in speaking, “trial” includes made made in furtherance of decisions ings before it judgment. which form basis the case issues 598]; see Court, Superior (Stow
545 234]; Pac. Goldtree Duvergey, 146 also Green Cal. [80 v. 1091].) Pac. Spreckels, [67 not that a trial has petitioners position take The impaneled intro- jury and the until the has been commenced upon Among begun. other decisions duction of evidence Court, 6 Superior Cal. they rely Superior Oil Co. v. (2d) that (2d) 950], which was held brought meaning case had not been to trial within § by hearing upon prelimi- a Code of Civil Procedure judg- nary injunction. present proceeding But in the ment of dismissal rendered the court had commenced was after pre- great to examine the evidence was to be volume of admissibility. jury rulings upon sented to the to make its questions These determinations were decisions on of law were made in trial The furtherance of the the merits. had, therefore, begun trial was and the court authorized against petitioners render for their failure attend. question The next is whether the trial court abused ’ petitioners denying
its discretion in motion under 473§ judgment. the Code of Civil The Procedure vacate the undisputed May July 24th, facts show that from 8th to petitioners, duly by pre- represented counsel, participated in liminary proceedings heirship hearing. in the On the date represented last mentioned, court, while were so motion previously dismissing made for an order claims through all appeared person who or had counsel was renewed. The in an effort to conduct the in an orderly granted manner, motion, and further attorney directed that no or claimant absent himself the trial without permission, providing or without substi- tute, transpired or stipulating to be bound all that in his absence. attorneys representing petitioners gave then notice in
open court of their intention to withdraw and that would thereafter propria per- July 25, 1939, On sonae. writing a substitution day filed. judgments effect was On the same nonsuit dismissal were entered all claimants who were present represented respond counsel and failed who call, being among to the roll them. Petitioners appeal Following did not from the of dismissal. 26, 1939, was the court entry, until after December its reviewing depositions and continuously in engaged almost been filed documentary which had evidence 26th, peti- On December claimants. the various on behalf of notice gave formal counsel appeared tioners new dis- 473, supra, to vacate the to move under their intention § subsequently made and denied. motion missal. Such again denied. April 15, 1940, and was renewed on petitioners’ failure would excuse No are shown which facts *6 concerning at- requirements comply to with given explanation satisfactory and tendance the trial no at seeking to waiting months before delay in for five for their more than were all from default. There be relieved approximate an is of estate claimants and petitioners’ non- period $5,000,000. During value upon objections made appearance, the trial court ruled deposi- testimony contained claimants to the different documentary open court, to the tions, read in and which were purpose prelimi- offered. The these evidence which was simplify the trial nary proceedings and was shorten jury. To proposed it was to submit to a of fact which issues proceeding de- permitted petitioners to re-enter the have which hearing preliminary matters novo all these mand a de have unexplained absence, in their would decided had been refusing manifestly claimants. In to the other been unfair wise exercised a dismissal the court to vacate upheld. must be and its order discretion judg heirship, the Concerning claim of the second become final against the has ment rendered ex rights to the same it amounts to determination of adjudi if been an manner as there had and in same tent 12 Cal. Court, (King Superior upon the merits. cation p. 524, sec. (2d) ; Jur., (2d) 501 App. 268] 16.) pro- discharged writ of mandate
The alternative ceeding dismissed. J., Traynor, J., J., Shenk, concurred.
Gibson, C. CARTER, J., Dissenting. I dissent. majority agree
I the conclusion reached in the with do In opinion based. view of or the reasons superficial treatment of both the facts and the law pro- majority opinion, I constrained to review the entire feel my applicable ceeding express law before us view the us. presented to the factual the record before situation compel original in mandamus This is Superior Angeles County permit petitioners Court of Los pending participate in a O’Dea, said court the matter of the estate Michael appears petition deceased. and answer thereto January 22, that Michael F. on O’Dea died intestate 1938. Angeles County 'He an estate resident of Los and left $5,000,000. Proceedings valued at approximately for Superior promptly of his estate instituted in the were Angeles County. August Court of Maria 11, 1938, Los On McCarthy petition and others filed in said estate the determination of in accordance with the visions of of the Probate Code. Said claimed be first cousins and related to decedent in the fourth degree. petition A was set for December said gave and the clerk notice thereof in accordance with the *7 provisions of section 1200 Probate Prior Code. to said date, appeared last-mentioned numerous claimants filed and their heirship they respectively written statements of wherein claimed to be heirs at law of the decedent and interested in his A jury estate. demand was made trial on issues for the by petition statements, judge raised said and and the trial Thereafter, granted. announced that said demand would be hearing petition the on regu- the statements and so filed was July larly 17, continued from time to until 1939. Be- 1938, 5, May 8, 1939, tween December and several hundred depositions regularly Ireland, were taken in in Canada and portion eastern the behalf the United States on of claim- prior ants who had filed their 5, statements December 1938. May 8, 1939, Henry O’Day O’Day On J. and Genevieve Jen- sen, petitioners herein, appeared first state- and filed ment in regularly said and thereafter participated in the 24th had therein between that and the date day July, July 17, 1939, 1939. On by original petition issues heirship raised to determine said theretofore in other claimants filed and all statements number, in 460 claimants proceeding, aggregating more than hearing the names At said was commenced in the trial court. called, appeared were had theretofore all claimants who attorneys through herein, their then of record petitioners and participated therein. On appeared and in said original petitioners in the attorneys date for the named that moved court for an order petition appeared person in or defaulting all had not who heirship proceeding. in Said motion through counsel said 24, July July 18, 1939, and on that date was continued renewed, while July 1939, 24, 1939. On said motion was attorneys petitioners represented by their herein were in conduct the attendance, court, an effort to then orderly manner, granted Likewise, while in an said motion. an- represented, court made herein were so open ordering attorney claim- court, that no or other order permission of the ant absent himself from the trial without stipulating providing substitute, for a or to be bound transpired absence, furthermore, that all that in his anil except July 24, 1939, no be filed after statements Pro- showing Civil under section of the Code of representing July 24, 1939, attorneys then cedure. On gave open petitioners herein notice in court of their intention peti- attorneys petitioners, that to withdraw for said propria thereafter tioners would said July personae, writing on substitution in to that proceeding. in said On the effect was filed same date following roll call proceeding, of claimants said original petition attorneys named the court enter default moved appeared all claimants who had at date said ceeding, granted. Following grant- and said motion was ing thereof the same counsel moved the court for a nonsuit appeared all claimants who had theretofore proceeding, present but represented said who were not July 25, 1939, counsel at the trial on failed who had respond upon roll call were said on date. Petitioners among respond those who failed names. Said so to their granted was, motion was and a nonsuit said *8 date, duly against including entered all claimants, said petitioners. Following granting motions, the of said and December, 1939, engaged until after the the court was 26th of depositions continuously in the and reviewing almost various documentary proceeding evidence which had been filed said depositions were on behalf of the claimants. The various open documentary read in court and was offered evidence support of its claimants, some of the and the made rulings objections the admissibility the of made documentary testimony evidence oral and contained depositions. purpose pre- various announced this liminary proceeding simplify was shorten trial and impaneled. subsequently issues fact jury before to be 26, 1939, appeared On December herein gave trial court inten- other counsel and formal notice of tion to move under section of the Code of Civil Proce- judgment dure to vacate said them. A nonsuit written notice of thereupon 5, such motion January filed. On 1940, this motion was court. heard the trial denied April 1940, On herein motion made second under said judgment nonsuit, section to vacate said which motion was denied.
Petitioners trial court acted in excess contend non- jurisdiction directing entry its of a and that and dismissal them said suit bar therefore void and of no not constitute a effect does participation in said estate. contention there support of their Petitioners assert respondent court power under authority
is no grant of the Probate Code default provisions of the heirship and that section in a nonsuit applicable Procedure because of Civil the Code not commenced at proceeding had the trial granted. dismissal was judgment of nonsuit said that the Superior contends Respondent Court provisions and that commenced had applicable to made are Civil Procedure the Code of 581 of 1230 and virtue of sections of this character Code. the Probate 1233 of enacting that in sections clear I think the obvious intention of the Code, it was Probate 1082 of the simple expeditious method of provide legislature to en- rightful heirs of estate and determining who *9 550 contemplated proceeding
titled to distribution thereof. The by said sections in the nature civil action is somewhat of a respective other wherein the to each claimants are adverse but they necessarily parties are not adverse to each any grievance seeking sense that of aris- redress ing any respective right enuring out of the violation to the of de- essentially claimants. Such in rem to is one termine con- who the estate. It is entitled to the assets of is ceivable that might the trial court determine that none of petitions claimants who have filed statements rightful are the are therefore not heirs the estate and entitled portion thereof; to the in other any distribution of words, required court is not to decide favor of claimant who prove does not the satisfaction that he a distribu- relative of deceased and entitled to portion tion of a of his estate under the laws of descent this It such a possible state. that the result of therefore no might a determination left that deceased living heirs and would to the of Cali- his estate escheat State fornia. purpose
It cannot be denied that aim the ultimate administration proceedings, including proceedings to deter- mine persons is to ascertain the entitled to share the estate of the decedent and to decree distribution accord- ingly. Every justice public policy dic- consideration right- tates that estates of decedents be distributed to fully every entitled thereto and that concern endeavor of a accomplishment court should be directed to purpose. (Edlund this Superior Court, 209 690 Cal. [289 841].) Pac. foregoing proceed
With the
consideration in
let us
mind
analysis
provisions
with an
of sections
application
1082 of the Probate
in their
the accom
Code
object
plishment
purpose.
Said
above-mentioned
provision
entry
dis
defaults,
sections contain no
for the
missals or
nonsuits
are characteristic of civil actions.
respect
In
this
under these sections are somewhat
analogous to a
former
1668 of the
under
section
objec
of Civil
filing
Code
Procedure which authorized the
petition
by
claiming
right
tions to
for distribution
one
differently
of the estate
him
have
share
distributed to
proposed
petition
was
from that
distribution.
was contained
provision
since no
court that
this
held
against such
default
authorizing
entry of a
section
his
file
if
failed to
he
even
claimant, he
not barred
hearing
of a
prior
the actual commencement
objections
Ross,
Turning of the Probate Code we find framing provision has been made of the issues to are already sufficiently up; made to who tried, if also as not regarded plaintiffs if no defendants; that as who to be the issues of fact are to be tried jury been demanded has requirements rules conformity “in with the of the the court sign actions,” practice in civil “the must . . . of provided writing in civil actions.” its decision as and file provided in section 1233 of the Probate Code It is also provided code, provisions said not otherwise “the when (sections Procedure 307- part II of the Code of Civil of applicable practice constitute the of 1060a) to and rules proceedings regard in this code with mentioned in the appeals, appeal, records on and all other trials, trials, new Obviously, procedure.” these last-mentioned sec- matters applicable tions of proceedings the Probate Code are heirship under sections 1082 of said code.
The problem presented, however, whether not provisions of section 581 of the Code of Civil Procedure are applicable may to a of this character and relied peti- to sustain order of the court attacked opinion tioners I am the herein. that said section applicable character, this and that may regu- granted against nonsuit not be claimant who has larly appeared heirship filed a statement of in such ceeding pursuant provisions to the of section 1080 Probate stated, Code. I have heretofore duty As it is the the probate court rightful to determine who are the heirs an estate, duty and this exists whether or actu- such heirs ally appearance make an file estate heirship; a statement words, if it should competent produced evidence in an heirship persons filing that one more other than those statements are the next of kin and lawful heirs of decedent pursuant and entitled to the distribution of his estate state, laws duty of descent of this it is the of the court to make distribution of said estate to such may exclusion of all claimants who have filed statements but have right who failed to establish their next kin and heirs at law of the decedent.
In view of peculiar proceeding' nature aof heirship, it participants should not be said plaintiffs are either *11 defendants, but independent each is an asserting actor his claim to share in the assets the estate either in common with or to the exclusion of all other claim- ants. proceeding hearing When such a comes on for it is the duty of the trial obvious court to direct the conduct of the require respective trial present and claimants to their proof in the order which trial court deems will best facili- disposition tate the of the case. It necessarily follows present if a claimant not ready proceed and to when di- present support rected court to evidence his may claim, such claimant be barred prosecu- from the further tion of such claim. It likewise follows that a claimant who the proceeding raising absents himself from barred objection any any which taken have accept words, he must absence; in other place during his cannot and he his return after finds them proceedings as he during his place complain what has taken as to be heard absence. participated In the at bar case filed they them from the employed by through counsel 24, July May 1939, until on their statement of withdrew their counsel date 1939. the last-mentioned On does personae. they appeared propria thereafter granted the motion for court appear the time the that at they against petitioners, and dismissal of nonsuit support present evidence had been called participate in otherwise heirship or statement of commence- except since the in court present to be peti- absence of July 17, 1939. The ment of the preclude the tioners from the courtroom thereafter would kin the next of determining that were trial court from evidence rightful of decedent if the and therefore the heirs situation. subsequently presented this to be the disclosed an eminent analogous might An be said to exist in situation parcels separate land domain where several severalty. mere involved, arc title to which is held pro- appeared fact that one of had in such the owners who portion of ceeding during absent and filed answer was non- justify granting trial court in the trial would not compensation denying suit as him him for his land if produced from evidence was which the court could damages compensation the amount of he was authority entitled; words, in other have no would grant in such a case to a nonsuit his defendant event of failure to at trial. In view the above discussion it seems obvious to me provisions of the Code of Civil Procedure applicable are not proceeding under sections to.an necessarily Code, of the Probate and it granting follows that the order of the trial court against petitioners of nonsuit and dismissal unauthorized permitted participate should in such notwithstanding ceeding such order.
However, even if we assume that section 581 of the Code applicable heirship proceedings, Procedure is of Civil Accepting the same. result would conclusion that such *12 a is in the nature of a civil action in the which position parties of the is other, adverse to each it must be con- ceded party then plaintiff that each is in a a sense either a or defendant, or a cross-complainant. defendant and a The one who initiates petition the filing first the de- proponent termine a claim, is of a in sense that plaintiff, but if claims are the filed which his, conflict with he is also a defendant toas claims—that is, defending against he is them. As claim- ants other initiating than the they ones proceeding, are defendants they sense that resisting are the claims the ones initiating the proceeding also, possibly, claims of other They said, claimants. plaintiffs, may are or it cross-complainants in affirmatively urging claim to the estate. thoughts
With these in mind let us turn to 581 of provides involuntary Code of Civil Procedure which dismissals for appear on the trial. Petitioners’ failure claim of heirship was appear, dismissed for their failure to so provides section 581 part:
“An may action be dismissed, nonsuit entered, in the following By cases: 3. ... when party either fails trial, ap- party and the other pears and asks for may a dismissal. ...” assumed that the appearance made, on trial to which reference is actual physical presence person court in counsel. question difficult scope the meaning words party.’’ “either practicality, Reasonableness and which law, compels foundation of all following conclusions proper as to the interpretation those words. In an ordi- nary civil plaintiff action it is obvious would ask for or desire a dismissal of action his if the defendant did appear on the trial. If he desired such a dismissal would he (cid:127) proceed pre- to a voluntary abandonment of the action as (4) scribed section 581 of the Code of Civil Procedure. If did great majority he not desire a dismissal, case, of instances would be the his proceed prove he would judgment against ease obtain defendant; fact, order to obtain necessary it would be for him to prove the hand, elements his case. On the other de- fendant, in the event of nonappearance on the trial plaintiff, would desire that the action be dismissed or entered, nonsuit and thus he would-wish to avail and could might himself of subdivision section 581. He wish *13 proceed proof negating plaintiff’s with claims in his action, on merits which case he could obtain a similar plaintiff prosecuting which would bar a new but from only action him. occasion on It that the follows nonappearance might a dismissal for be desired on the defendant by be where plaintiff defendant, would both by answer such relief his had demanded affirmative those circumstances cross-complaint. Under counterclaim or request plaintiff defendant’s a dismissal of would desire appear, and failed to for affirmative relief when defendant dis- might demand a defendant plaintiff appear if to failed query as plaintiff’s brings us to the missal of action. That may justify appear during failure to to what time the trial a Code 581 of a dismissal under 3 of section subdivision sec- interpretation of only The reasonable Civil Procedure. becomes point when it (3) tion 581 that that is the proceed with duty party asking relief to affirmative plaintiff’s A prosecute his case, if he intends to claim. his be appear would opening day failure to at of the trial justifiable ground granting motion dis- defendant’s to miss, plaintiff go at forward because the burden is to however, time, that on defendant, time. that at defensive, suffered only and the would be prejudice that objection him would be waiver of to the de- duty of the When it became the in his absence. taken plaintiff case, affirmative then proceed with his fendant not defendant were if of the same could have dismissal proceed, the absence present and does present, if he is entitle not would plaintiff while he was so interpret plaintiff’s action. To to a dismissal defendant where (3) mean that in a ease otherwise would appear at sought relief failed to affirmative defendant case, with his plaintiff was when the the trial cross-complaint forth- could be counterclaim defendant’s not my opinion a harsh rule should In dismissed. with may particularly concerned not be invoked. Defendant being placed cross- action, his reliance his plaintiff’s about where de- complaint. Surely it cannot be said that a case relief, that seeks no affirmative fendant (3), he effect defaulted provisions of section be- defending against plaintiff’s by prevented from action He present prove his ing plaintiff case. when commences submitted, being may appear later before the action is but bound, his course, that has occurred in absence. all (Warden 867].) Lamb, App. 738 plaintiff parties defend- seen,
As we have are both cross-complainant in an plaintiff ant or and defendant and the occasion proceeding. It does required yet had were arisen at the when heirship; go court proof forward with claim of of their merely them did not direct to do It ordered them so. present stated, the dis- heretofore court. Under the test petitioners’ prior the time missal of claim was There- proceed prove were duty under a their claim. peti- fore, jurisdiction dismissing its exceeded heirship. tioners’ claim of general rule exception been only has held that the to the probate to
confining appeals judgments orders or *14 an specified is, 1240 those section of the Probate Code denying motion appeal granting will lie an order from probate such for a new trial in in which those O’Dea, proper. (Estate motion is 637 (2d) (2d) 368].) granting An nonsuit or order heirship proceeding cf orders an is not one those no Therefore, mentioned in said have section 1240. peti- remedy appeal. attempt However, made was denying appeal tioners from an order of the trial the Code them relief from order under section Procedure, appeal this court. but such was dismissed Civil O’Dea, supra, See Estate said: wherein this court reenact- simply “Section 1240 of Probate Code is Proce- ment of section 963 of the Code Civil subsection of no dure, held that and this court has on numerous occasions denying relief under appeal will an order in lie from Procedure, any other section 473 of the Code of Civil Code specified order not subsection exception Procedure, above-mentioned.” Civil the one with foregoing opinion, follows Prom I said what have prayed for in petitioners” entitled the relief are should writ mandate petition herein, peremptory permit petitioners directing respondent court to issue rightful to determine who participate deceased, ’Dea, pending O heirs to the Estate of Michael F. said court. Sep- rehearing denied application
Petitioners’ for a tember 1941. Aug. 29, No. 5444. In Bank. 1941.]
[Sac. (a QUARTZ IRELAN-YUBA MINING COMPANY GOLD PA Corporation) Appellants, al., et Plaintiffs and (a Corpora CIFIC GAS & ELECTRIC COMPANY tion) et al., Appellant; THE Defendant and SOCORRO MINES, Respond (a Corporation), INCORPORATED ent.