Arens v. Superior Court In and For San Bernardino County
| Court | United States State Supreme Court (California) |
| Writing for the Court | TRAYNOR; GIBSON; SCHAUER |
| Citation | 45 Cal.2d 623,290 P.2d 257 |
| Parties | Treasure Alice ARENS, Administratrix de bonis non of the Estate of Chauncey L. Hartman, deceased, Petitioner, v. SUPERIOR COURT of the State of California in and for the COUNTY OF SAN BERNARDINO, Respondent. Maude H. McLaren, Real Party in Interest. L. A. 23765. |
| Decision Date | 29 November 1955 |
Page 257
v.
SUPERIOR COURT of the State of California in and for the COUNTY OF SAN BERNARDINO, Respondent.
Maude H. McLaren, Real Party in Interest.
Krag & Sweet and Donald R. Krag, Alhambra, for petitioner.
No appearance for respondent.
Lonergan & Jordan and A. M. Sessions, San Bernardino, for real party in interest.
[45 Cal.2d 624] TRAYNOR, Justice.
On March 7, 1951, approximately 19 years after the death of Chanuncey L. Hartman, a verified petition was filed in the Superior Court of San Bernardino County on behalf of his widow, Nellie May Hartman, by her son-in-law, Charles R. McLaren, alleging that the decedent had an undivided two-thirds interest in certain real property of the value of $4,075 and that the widow had an undivided one-third interest therein. The petition prayed that the real property be set apart to the widow 'for her lifetime, as a probated homestead, and for such other relief as may be proper in the premises.'
On April 18, 1951, the court entered the following order:
'The verified petition of Chas. R. McLaren for an order setting apart a homestead under the provisions of Sections 660 and 661 of the Probate Code, heretofore filed in this Court, came on regularly to be heard this 23rd day of March, 1951; it appears to the satisfaction of the Court, and the Court finds, that notice of the hearing on said petition has been regularly given in accordance with the provisions
Page 258
of Section 1200 of the Probate Code; and the Court having heard the evidence, it appearing therefrom that the allegations in the petition are true and that at the time of decedent's death, Nellie May Hartman, the surviving widow, was a member of decedent's family, and it having been duly made to appear to the Court that no homestead had been selected during the lifetme of the decedent, and it further appearing the property hereinafter described was owned, as to an undivided one-third interest, by Nellie May Hartman, the surviving widow of decedent, as her separate property, and as to the remaining two-thirds interest by decedent, as his separate property, and that said real property should be set aside to the surviving widow.'It is hereby ordered that the land described as follows, to wit: (description omitted) * * * be and the same is hereby set apart to Nellie May Hartman, the widow of decedent, as a homestead for the use of Nellie May Hartman, and that said real property so set aside shall vest absolutely in and belong to her.'
On February 3, 1952, Nellie May Hartman died leaving a will in which she sought to devise the real property to her daughter Maude H. McLaren. On September 7, 1954, petitioner herein, Treasure Alice Arens, the daughter of decedent Chauncey L. Hartman, noticed a motion to vacate the order of april 18, 1951, setting apart the probate homestead[45 Cal.2d 625] absolutely to Nellie May Hartman, on the grounds that the relief granted was in excess of that prayed for, see Burtnett v. King, 33 Cal.2d 805, 205 P.2d 657, 12 A.L.R.2d 333, and that under Probate Code section 661 the court acted in excess of its jurisdiction in setting apart the probate homestead to Nellie May Hartman absolutely instead of for life. After a hearing the court of September 23, 1954, denied the motion on the grounds that 'it appears from the record that since no requests for notice were filed, the notice as given was legally adequate' and that 'petitioners' remedy was a timely appeal from toe Order made.' Petitioner seeks a writ of certiorari to review the order denying the motion to vacate the order setting apart the probate homestead.
The order setting aside thr probate homestead was an appealable order and became final when the time for appeal expired, Prob.Code, § 1240, whether or not it was in excess of the jurisdiction of the court. Phelan v. Superior Court, 35 Cal.2d 363, 366, 217 P.2d 951. Certiorari does not lie to review that order, for the writ can issue...
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Sinnamon v. McKay
...of the court's ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. Arens v. Superior Court, 45 Cal.2d 623, 625, 290 P.2d 257 .... It is a litigant's duty to protect his own record in each step of the proceedings, and his failure to do so, in the ab......
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Simmons v. Superior Court In and For Santa Barbara County
...of the court's ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. Arens v. Superior Court, 45 Cal.2d 623, 625, 290 P.2d 257. It is a litigant's duty to protect his own record in each step of the proceedings, and his failure to do so, in the absenc......
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Sinnamon v. McKay
...of the court's ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. Arens v. Superior Court, 45 Cal.2d 623, 625, 290 P.2d 257 .... It is a litigant's duty to protect his own record in each step of the proceedings, and his failure to do so, in the ab......
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Simmons v. Superior Court In and For Santa Barbara County
...of the court's ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. Arens v. Superior Court, 45 Cal.2d 623, 625, 290 P.2d 257. It is a litigant's duty to protect his own record in each step of the proceedings, and his failure to do so, in the absenc......