Hewitt's Estate, In re

• Decision Date: 19 May 1958
• Citation: 160 Cal.App.2d 584,325 P.2d 113
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Florence Elizabeth HEWITT, Deceased. Ethel Mary PEAK, Appellant, v. Robert M. McGROUTHER, Adm'r with the will annexed of the Estate of Percival H. Myers, Deceased, Substituted for Percival H. Myers, Respondent. Civ. 17921.

Page 113

325 P.2d 113

160 Cal.App.2d 584

In the Matter of the ESTATE of Florence Elizabeth HEWITT, Deceased.

Ethel Mary PEAK, Appellant, v. Robert M. McGROUTHER, Adm'r with the will annexed of the Estate of Percival H. Myers, Deceased, Substituted for Percival H. Myers, Respondent.

Civ. 17921.

District Court of Appeal, First District, Division 1, California.

May 19, 1958.

Ethel Mary Peak, in pro. per., for appellant.

O'Gara & O'Gara, San Francisco, for respondent.

PETERS, Presiding Justice.

On January 22, 1957, Florence E. Hewitt died, testate, leaving as her sole heirs her niece and nephew Ethel Peak and Percival Myers, brother and sister. Both filed petitions for letters of administration with the will annexed. After Myers had filed, and before Ethel Peak had filed, the Probate Court on February 13, 1957, on the ex parte application of Myers, appointed him special administrator. On February 25, 1957, Ethel Peak filed objections to the appointment of Myers, and on the same day filed her petition for letters. On March 11, 1957, after a hearing, the court entered its minute order reading as follows:

'Petition of Ethel M. Peak for Letters of Administration with Will annexed Denied.

'Petition of Percival H. Myers for Letters of Administration with Will annexed Granted.'

The next day, March 12, 1957, the court entered its formal order admitting the will to probate and appointing Myers administrator with the will annexed.

On March 14, 1957, Ethel Peak appealed from the minute order of March 11, 1957. On April 17, 1957, Ethel Peak filed an amended notice of appeal 'from the orders made and entered in the above entitled matter granting the petition of P. H. Myers for letters of administration and the order denying the petition of Ethel M. Park for letters of administration. * * *

'Said orders were made and entered in the Clerk's Register on or about March 11, 1957.'

Both notices of appeal refer only to the minute order of March 11, 1957. In part at least, the appeal should have been from the formal order of March 12, 1957. This, however, is of minor importance, and does not render the appeal premature. Under the Rules on Appeal, and the cases interpreting them, the appeal will be considered, so far as necessary, as having been taken from the formal order later entered. Rule 2(c); Holden v. California Emp. Stabilization Comm., 101 Cal.App.2d 427, 225 P.2d 634; Smith v. Smith, 126 Cal.App.2d 194, 272 P.2d 118.

Appellant attempts to attack the order of February 13, 1957, appointing respondent, ex parte, as special administrator. This she may not do. She has not appealed from that order. She could not have done so. Section 460 permits the Probate Court to appoint a special administrator when the circumstances of the estate require the immediate appointment of a personal representative, and section 461 provides that such appointment 'may be made at any time without notice * * * such order is not appealable.' Thus, nothing further need be said about the attack on the order of February 13, 1957.

The attacks upon the minute order of March 11, 1957, and the formal order of March 12, 1957, present more difficult problems. Both sides admit that those orders were void because they were not supported by findings of fact and such findings were not waived. Both sides agree that the statute provides, and the cases hold, that such orders must be supported by findings. See § 1230, Prob.Code; In re Estate of Dow, 91 Cal.App.2d 420, 205 P.2d 698. The parties differ, however, as to whether the appeal, being from a void order, should be dismissed or reversed.

There is substantial authority that appeals prematurely taken from orders not appealable because not final should be dismissed. In re Estate of Dow, 91 Cal.App.2d 420, 205 P.2d 698; Supple v. Luckenbach, 12 Cal.2d 319, 84 P.2d 52; In re Estate of Lopus, 12 Cal.2d 651, 86 P.2d 818; In re Estate of Dodds, 52 Cal.App.2d 287, 126 P.2d 150; see, also, In re Estate of King, 121 Cal.App.2d 765, 264 P.2d 586. It should be noted that several of these cases last cited were decided before the 1951 amendment to Rule 2(c), which has now changed the rule of these cases.

There are also several well-reasoned cases holding that since a dismissal is in legal effect an affirmance, the proper procedure is to reverse, even though the order is unsupported by findings. In Petroleum Midway Co. v. Zahn, 62 Cal.App.2d 645, 145 P.2d 371, a judgment, unsupported by findings, was entered and an appeal taken, in a case requiring findings. The court discussed the problem at some length and came to the conclusion that in such cases, although the appeal is premature, the judgment or order appealed from should be reversed, rather than dismissed. The court in the Zahn case first pointed out that as in the instant case no subsequent judgment supported by findings has been entered, and then stated (62 Cal.App.2d at page 652, 145 P.2d at page 375): "The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from.' Code Civ.Proc., § 955. The only judgment in this case should be reversed, not affirmed by the dismissal of the appeal.

'The principles and practice of the decided cases warrants our reversed of the judgment. The entry of a judgment without findings, where findings are required and not waived, is not an immaterial error in procedure. [Citing several cases.] In each of the cases just cited the complication created by entering a judgment without the filing of prerequisite findings was cured by reversing the judgment on appeal. An appeal should be an appropriate remedy. The judgment appealed from would be a valid judgment, if findings had been waived, and as the judgment roll need not, and does not, reveal whether findings were or were not waived, the judgment, under many circumstances, would be immune from attack. [Citing a case.] It is true that such judgments may be characterized as nullities. [Citing two cases.] However, 'It has been repeatedly held that an appeal may be taken from an order or...