246 P. 334 | Cal. Ct. App. | 1926
Certiorari. The record herein shows in substance that the respondent Superior Court had jurisdiction in a certain probate proceeding before it wherein final distribution of an estate was ordered, which, in accordance with the terms of the will therein involved, included distribution to W.B. Scarborough Company, a corporation, as *323 trustee in possession of certain real and personal property; that said W.B. Scarborough Company was not legally qualified to act as such trustee; that, although since such distribution a period of more than six months had elapsed, in violation of the provisions of the statute said trustee had failed to file in said Superior Court an inventory of the properties received by it under such order of distribution, and had likewise failed to file any report or account as such trustee; that thereupon petitioner herein had filed a petition in said Superior Court by virtue of which a "citation" was caused to issue to said trustee, commanding it to show cause why it should not be required to file an account, and "why said corporation accepted such trust, to receive, manage and control the property of said estate"; that said corporation duly filed its answer to the said petition; that thereafter said matter came on regularly for hearing before said Superior Court and, over the objections of petitioner, the following final order was entered, to wit: "Respondent having appeared and answered citation, the same is dismissed." The oral reason given for such order by the judge of the Superior Court at the time the order of dismissal was made was that "this court sitting in probate has no jurisdiction in the premises; the remedy of the petitioner, if any, is by bill in equity for an accounting brought in another department of this court."
On the part of the respondent herein it is urged, among other things, that if, as contended by petitioner, the order of dismissal be construed as one finally dismissing and disposing of the proceedings, it is appealable, and consequently thatcertiorari will not lie.
There would seem to be no question but that a probate court, as originally constituted, and as separated and distinguished from the now existing Superior Court, had no jurisdiction in a matter of the nature of that involved in the controversy which is the foundation for the present proceeding before this court. [1]
The real business of the probate court is the settlement of estates of deceased persons. When the order of final distribution and discharge of the executor under the will or the administrator of the estate has been entered, the work of the probate court with reference to the estate is ordinarily ended. [2] As distinguished from the settlement of the estate, whatever additional legal *324
business connected with the administration of the affairs of the estate may require judicial attention must ordinarily be administered in another forum. It is only when authorized by some express statute that the probate court, sitting as such, and disassociated from the Superior Court, may entertain matters of a nature distinct from the settlement of estates of deceased persons. In the proceeding presented to the probate court by the petition to require the filing of an account by the trustee acting under the trust created by the will, the probate court derived its authority from the provisions of section
In the case of Estate of Davis,
In the case of More v. More,
The case of Morffew v. San Francisco San Rafael R.R. Co.,
A case which in its declaration of the law goes somewhat beyond that which is stated in either of the foregoing cases is that entitled King v. Chase,
[3] From a consideration of the foregoing authorities it becomes clear that the proceeding initiated by petitioner in the probate court was entirely independent of any administration *326
upon the estate in which the proceeding was entitled; that in the absence of the statute (sec.
According to the statutory provisions, judicial remedies are such as are administered by courts of justice and are divided into two classes — (1) actions, and (2) special proceedings. (Secs. 20, 21, Code Civ. Proc.) An action is denied as "an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense"; and every other remedy is a special proceeding. (Secs. 22, 23, Code Civ. Proc.)
[4] It is apparent that if the petition be considered as a special proceeding, the order by the judge sitting in probate dismissing the citation constituted the basis of the final determination thereof. In order to dispose of the question presented for decision, we shall assume further that the order is in effect a final order, though not formally entered as such. Section 963 of the Code of Civil Procedure provides that an appeal may be taken from the superior court: "(1) From a final judgment entered in an action or special proceeding, . . ."
The case of McAdoo v. Sayre,
"It is further provided in section
Section
From the case of McAdoo v. Sayre, supra, it clearly appearing that the order to which the consideration of the *328 court as herein directed is appealable, it follows that, irrespective of the other questions which are submitted by the parties to this controversy, the writ should be discharged and the proceeding dismissed. It is so ordered.
Conrey, P.J., and York, J., concurred.