Roberson's Estate, In re

Citation250 P.2d 179,114 Cal.App.2d 267
CourtCalifornia Court of Appeals
Decision Date18 November 1952
PartiesIn re ROBERSON'S ESTATE. MARSH et al. v. TILLIE et al. Civ. 4411.

David W. Williams, Los Angeles, Joseph V. Mazziotta, San Bernardino, for appellants.

E. John Eriksson, Homer M. Bail, San Bernardino, for respondents.

PER CURIAM.

This is a contest of a will before probate. The respondents filed a contest to a will dated July 18, 1949. A jury found that the deceased was of unsound mind at the time the will was executed. A judgment denying admission of the will to probate was filed on January 12, 1951, and entered on the same day. The proponents moved for a judgment notwithstanding the verdict and for a new trial, which motions were denied on March 12, 1951.

On March 26, 1951, the proponents filed a notice that they 'hereby appeal' from the denial of their motion for a nonsuit, from the denial of their motion for a directed verdict, from the denial of their motion for a judgment notwithstanding the verdict, from the denial of their motion for a new trial, and from 'the verdict of the jury favoring contestants and from the whole thereof.' On the same day, they filed with the clerk a notice and request 'for a reporter and clerk's transcript'. This notice first recites that the proponents 'have heretofore filed notice of appeal from the judgment in said action' and then requests that a reporter's and clerk's transcript be made up and prepared, including all testimony and evidence offered or received, all rulings made, and all objections or exceptions of counsel. It then given 'further notice' that proponents desire to have included in the record on appeal all exhibits, the petition for letters, the petition to revoke will before probate, the answer to that petition, the motion for judgment notwithstanding the verdict, the motion for new trial, and the 'findings of fact and conclusions of law.'

The appellants' sole contention is that there is a lack of substantial evidence to support the jury's verdict finding that the deceased was of unsound mind at the time the will in question was executed. The matter of the judgment was not mentioned in the opening brief. The respondents first contend that no appeal was taken from the judgment, or from any of the appealable orders mentioned in section 1240 of the Probate Code, and that it follows that this court is without jurisdiction to decide the question presented by appellants. While a motion to dismiss this appeal was earlier denied, we think this contention should be sustained.

The matters mentioned in the notice of appeal are not appealable; an order denying a motion for a new trial, In re Estate of Dopkins, 34 Cal.2d 568, 212 P.2d 886; an order denying a motion for a nonsuit, In re Estate of Patterson, 220 Cal. 370, 31 P.2d 197; an order denying a motion for a directed verdict, In re Estate of Alegria, 87 Cal.App.2d 645, 197 P.2d 571; an order denying a judgment notwithstanding the verdict, In re Estate of Green, 25 Cal.2d 535, 154 P.2d 692; and no appeal lies from the verdict. In re Estate of Schlyen, 105 Cal.App.2d 648, 234 P.2d 211.

It has been held that a notice of appeal, if otherwise sufficient, may be a part of the same paper directing the clerk to prepare a record. And also that a notice of appeal is sufficient which states that the appealing party 'desires and intends to appeal from the judgment.' Purity Springs Water Co. v. Redwood Ice Delivery, 203 Cal. 286, 263 P. 810; Anderson v. Standard Lumber Co., 60 Cal.App. 445, 213 P. 65; Magruder v. City of Redwood, 203 Cal. 665, 265 P. 806; Mamer v. Superior Court, 15 Cal.2d 569, 103 P.2d 961.

Under a former statute, requiring that the notice of appeal give notice that the party 'does thereby appeal', it was held that a notice to a clerk requesting a transcript which stated that the appealing party 'has appealed' was not a sufficient compliance with the statute; Wall v. Hunter, 186 Cal. 473, 199 P. 775, 776, and that a notice which merely called for the preparation of a record should not 'be turned by construction into a notice of appeal and...

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  • People Ex Re. Gow v. Mitchell Brothers' Santa Ana Theater
    • United States
    • California Court of Appeals
    • January 20, 1981
    ......574, 537 P.2d 406; A. L. Castle, Inc. v. County of San Benito (1964) 227 Cal.App.2d 602, 603-605, 38 Cal.Rptr. 855; but see Estate of Roberson (1952) 114 Cal.App.2d 267, 250 P.2d 179, where this court expressed the fear that allowing an appeal in a case such as the present one ......
  • Williams v. J & J Equipment Rental
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    • California Court of Appeals
    • July 3, 2003
    ......Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 46-47, 269 Cal. Rptr. 228.) When several orders occurring close in time are separately ......
  • Welch v. Trefelner, A112270 (Cal. App. 9/28/2007)
    • United States
    • California Court of Appeals
    • September 28, 2007
    ......(See Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649, 656-657; Estate of Roberson (1952) 114 Cal.App.2d 267, 270.) We thus conclude that no appeal has been taken from the order granting the motion to strike by ......
  • Torres v. City of Los Angeles
    • United States
    • United States State Supreme Court (California)
    • June 21, 1962
    ...... Page 879 . [372 P.2d 919] and the attempted appeals therefrom are dismissed. (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907; Estate of Roberson, 114 Cal.App.2d 267, 268, 250 P.2d 179.) .         The judgments are affirmed. .         GIBSON, C. J., and TRAYNOR, ......
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