Cuneo's Estate, In re

• Decision Date: 22 March 1963
• Citation: 214 Cal.App.2d 381,29 Cal.Rptr. 497
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Stephen CUNEO, Deceased. Minnie CUNEO, Petitioner and Appellant, v. Charles C. HEIN, Claimant and Respondent. Civ. 174.

Page 497

29 Cal.Rptr. 497

214 Cal.App.2d 381

In re ESTATE of Stephen CUNEO, Deceased.

Minnie CUNEO, Petitioner and Appellant, v. Charles C. HEIN, Claimant and Respondent.

Civ. 174.

District Court of Appeal, Fifth District, California.

March 22, 1963.

Griswold & Barrett, George C. Barrett, Merced, for appellant.

Harold D. Sandell, Fresno, for respondent.

RALPH M. BROWN, Justice.

This appeal originated in interparty proceedings in a probate matter. Minnie Cuneo, appellant, and Charles C. Hein, respondent are coexecutors of the estate of Stephen Cuneo, deceased. Minnie Cuneo is also an heir and a devisee and legatee under the will of decedent. Appellant petitioned to remove respondent as an executor, for an order setting aside a prior judicial allowance of a claim in favor of respondent for the sum of $12,500 claimed to be due for services rendered by respondent to Cuneo Bros., a partnership in which decedent owned a one-half interest, which claim had been approved by respondent alone, as one of the executors, and allowed by the Honorable Gregory P. Maushart, and moved pursuant to section 170.6 of the Code of Civil Procedure for disqualification of Judge Maushart. These motions and petitions were heard on the same date. Appellant appeared as an heir, devisee and legatee and in her individual capacity as a coexecutor and was represented by personal counsel rather than the attorney of record for the coexecutors. She appeals from adverse rulings. Respondent challenges the appealability of the various rulings.

An appeal does not lie from findings of fact or conclusions of law (Estate of Nielsen, 204 A.C.A. 410, 22 Cal.Rptr. 260). An order merely allowing or rejecting a claim in whole or in part is not appealable (In re Estate of Cole, 106 Cal.App.2d 823, 236 P.2d 206, 3 Witkin, California Procedure, Appeal, § 27, p. 2173). It follows that an order merely denying a petition to set aside a prior approval or allowance of a claim is likewise nonappealable. An order denying a petition to remove an executor is appealable on the rationale that it is, in effect, an order refusing to revoke letters which section 1240 of the Probate Code specifies as an appealable order (Bauer v. Willis, 195 Cal. 375, 233 p. 342; In re Estate of Schloss, 56 Cal.2d 248, 14 Cal.Rptr. 643, 363 P.2d 875; In re Estate of Exterstein, 2 Cal.2d 13, 16, 38 P.2d 151; In re Estate of Johnson, 20 Cal.App.2d 735, 739, 67 P.2d 1079). An order denying a motion to disqualify a judge is not directly appealable (Keating v. Superior Court, 45 Cal.2d 440, 443, 289 P.2d 209; Thompson v. Superior Court, 206 A.C.A. 796, 23 Cal.Rptr. 841; Cothran v. San Jose Water Works, 89 Cal.App.2d 518, 201 P.2d 85; Wilson v. Loustalot, 85 Cal.App.2d 316, 193 P.2d 127); but it may be reviewed on appeal from the judgment of other appealable order involved (People v. Sweeney, 55 Cal.2d 27, 9 Cal.Rptr. 793, 357 P.2d 1049; People v. Yeager, 55 Cal.2d 374, 391, 10 Cal.Rptr. 829, 359 P.2d 261; Mayo v. Beber, 173 Cal.App.2d 596, 343 P.2d 765). Had the hearing judge been content to merely grant or deny the motion to set aside the prior allowance of the claim, this portion of the appeal would not be properly before us. But he saw fit to enter an absolute judgment in favor of respondent in the amount of $12,500, which might operate to bar the right conferred by Probate Code section 713 upon any person in interest to contest payment of the claim at the time of settlement of the accounting. Therefore, we interpret the judgment as an appealable order directing payment of the claim (In re Estate of Cole, supra, 106 Cal.App.2d 823, 236 P.2d 206; Miller v. California Trust Co., 15 Cal.App.2d 612, 616).

Turning to the merits, the law is clear that when a party property makes a motion under section 170.6 of the Code of Civil Procedure and the judge against whom it is directed fails to disqualify himself from hearing the matter before him, his action thereon is void. (Briggs v. Superior Court, 215 Cal. 336, 342, 10 P.2d 1003; McCauley v. Superior Court, 190 Cal.App.2d 562, 12 Cal.Rptr. 119.) If, then, Judge Maushart should have disqualified himself as a matter of law, his subsequent orders and the judgment are null and void. We have concluded that the court erred in refusing the claim of disqualification.

Section 170.6 of the Code of Civil Procedure provides for a peremptory challenge of a judge by the filing of an affidavit that he is prejudiced against a party or attorney so that the party or attorney cannot, or believes that he cannot, have a fair or impartial trial or hearing. It further provides that if such motion is duly presented and affidavit filed, 'thereupon and without any further act or proof' the matter shall be assigned to another judge. The right to assert a claim of disqualification is limited to a trial or hearing 'which involves a contested issue of law or fact.'

Respondent's main reliance is placed upon Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, also relied upon by Judge Maushart. In that case the refusal to disqualify a judge from hearing modification of child custody proceedings was upheld on the basis that the matter was a continuation of the prior custody order granted by the same judge. The claim of disqualification came too late. He also cites Dennis v. Overholtzer, 179 Cal.App.2d 110, 3 Cal.Rptr. 458, which stands for the same principle enunciated in Jacobs, and Mackie v. Mackie, 186 Cal.App.2d 825, 9 Cal.Rptr. 173. In the Mackie case the question of disqualification was considered and determined by the appellate court in the light of pleading and procedural problems peculiar to that case. It is neither persuasive nor controlling here.

In an attempt to bring our case within the ambit of the Jacobs rule, respondent argues that the matters here involved...