110 Cal. 556 | Cal. | 1895
Motion to dismiss the appeal. The last will and testament of Washington M. Ryer, deceased, was admitted to probate and letters testamentary
1. A failure to serve the adverse party with notice of the intention to move for a new trial, or with the draft of a statement of the case, may be a reason for denying the motion for a new trial, or for refusing to settle the statement, and may, upon an appeal, if such service was necessary, be a ground for affirming or reversing the order appealed from; but it does not deprive this court of jurisdiction to hear the appeal, or constitute a reason for its dismissal upon the ground that the court has not acquired jurisdiction to hear it. (Barnhart v. Fulkerth, 92 Cal. 155.) Matters occurring prior to the judgment or order appealed from cannot be considered on a motion to dismiss an appeal upon the ground that the appeal has not been perfected. (Centerville etc. Ditch Co. v. Bachtold, 109 Cal. 111.)
3. Upon an appeal from an order denying a new trial, the parties to the motion in the court below are only proper parties to the appeal (Watson v. Sutro, 77 Cal. 609); and the appellant'is not required to give notice of appeal to others than those to whom the original motion was directed. The “ adverse party ” upon whom a notice of appeal is to be served is the party who appears by the record to be adverse (Harper v. Hildreth, 99 Cal. 265); and the record which is to be considered for that purpose is the record of the proceedings in which the appeal is taken. The rule that the notice of appeal must be served upon all parties that would be affected by a reversal of the order and judgment appealed from, is to be construed with the other rule that only the record can he examined for the purpose of determining who are such adverse parties. The fact that the judgment or order may be used as evidence in some collateral action or proceeding, or that its reversal may have a remote or consequential effect to the prejudice of one who is not a party thereto, does not entitle such person to be made a party to the appeal. If it is necessary to resort to evidence extrinsic to the record upon the appeal in order to show that the reversal will have such effect, the appeal will not be dismissed.
The record to be used on an appeal from an order granting or refusing a new trial consists of the judgment-roll and the bill of exceptions or statement used on the hearing of the motion, with a copy of the order appealed from. (Code Civ. Proc., sec. 661.) There is no “judgment-roll,” strictly speaking, in proceedings in probate, but, whenever proceedings in probate are so akin to a civil action as to necessitate the “papers” which are declared by section 670 to constitute the judg
The proceeding instituted in the superior court by the appellant herein, is in the nature of a collateral inquiry, or episode, interjected into the proceedings for the administration of the estate, in which there are pleadings, process, trial, findings, and a judgment, thus presenting all the elements of a civil action instituted in an independent suit for the purpose of determining the right of the appellant to a share of the estate, and, in matters of procedure upon an appeal, should receive the same consideration as upon an appeal in a civil action. The proceedings were taken by virtue of sections 1658 to 1660 of the Code of Civil Procedure. Section 1659 provides: “Notice of the application must be given to the executor or administrator personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.” The manner in which notice of the settlement of the account of an executor or administrator is to be given is prescribed in section 1633, which requires the clerk to “ appoint a day for the settlement thereof, and thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account.” In the present case personal notice of the application was served upon the executors, and the clerk caused to be posted for five days in three public places, in the city and
The motions are denied.
Garoutte, J., and Van Fleet, J., concurred.