Silverman v. Gundelfinger, 82 Cal. 548

Silverman v. Gundelfinger

82 Cal. 548 | Cal. | 1890

McFarland, J.

Action to recover possession of an undivided interest in real property, described as lots 30, 31, and 32, in block 61, in the town of Fresno. Judgment went for defendants, and plaintiff appeals.

Plaintiff claims title as heir of H. D. Silverman, deceased; and defendants claim under probate sale made during the administration of the estate of said deceased. Appellant contends that the probate sale was void, because the petition upon which it was based was too defective to give the probate court jurisdiction; and the particular defect of the petition which he specifies is its alleged failure to state the value of the property sought to be *549sold, as required by section 1537 of the Code of Civil Procedure. The petition, which was made by the administratrix, shows that the inventory and appraisement were made September 25, T887, —but a little over five months before the petition itself was filed. The language of the petition which bears upon the question here involved is as follows: "That a full description of all the real estate of which the said decedent died seised, or in which he had any interest, or in which the said estate has acquired any interest, and the condition and value of the said real estate, are set forth in the schedule marked ‘D,’ hereunto annexed, and made part of this petition.” And the property in contest in the case at bar is described in the schedule “ D” as “one undivided half of lots Nos. 30, 31, and 32, in block 61, situated in the town of Fresno, with brick and frame buildings thereon, which is partnership property of the former firm of Silverman & fteinstein; the said one-half interest was appraised at seven thousand dollars.” And the point of appellant is, that the court was utterly without jurisdiction to order the sale, and the sale entirely void, because the petition does not clearly state that seven thousand dollars was the value of the property at the time the petition was made. But to hold this point good on a collateral attack would be to enforce a strictness of literal compliance with the statute beyond all reason. Substantial compliance has always been held sufficient. (Stewart v. Allen, 16 Cal. 474; Richardson v. Butler, ante, p. 174.) Upon a special demurrer, perhaps a court might require a little more certainty; but there surely was not such a total want of a statement of values as renders the petition defenseless against the attack made here, which is in the nature of an objection in an ordinary civil action that the complaint does not state facts sufficient to constitute a cause of action. The averment in the body of the petition may fairly be taken as an averment that the amount named in the schedule was the *550present value of the property. And at all events, as was said in Richardson v. Butler, supra, the petition, on this point, fully and fairly answers the purpose of the provisions of the code.

With these views it is not necessary to notice the other points discussed by counsel for respondents.

Judgment and order denying a new trial affirmed.

Ti-iornton, J., and Sharpstein, J., concurred.