Noonan's Estate, In re

Decision Date30 October 1952
Citation113 Cal.App.2d 899,249 P.2d 306
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re NOONAN'S ESTATE. MURPHY et al. v. KATZ et al. Civ. 15503.

Andrew F. Burke, San Francisco, for appellants.

Lamson, Jordan & Walsh, San Francisco, for respondents.

DOOLING, Justice.

Respondents move to dismiss an appeal from an order entered on November 8, 1951 denying a petition for the settlement and certification of a statement of the evidence for use on appeal in lieu of a reporter's transcript.

The clerk's certificate shows that in a proceeding to administer the estate of one Noonan, deceased, a decree of final distribution was entered and appellants filed a notice of appeal therefrom. In proper time appellants filed a notice and request for a reporter's transcript 'including therein the statement that they intended to proceed by settled statement in the event that the hearing on the settlement of the account and the petition for final distribution had not been reported or that the reporter's transcript could not be prepared and filed within the time required by law.' On September 6, 1951 notice of completion of a reporter's transcript was given to counsel, no request for correction was filed as provided by rule 8(a), Rules on Appeal and the reporter's certified transcript has been transmitted to the clerk of this court.

On September 18, 1951 appellants filed a proposed statement of evidence on appeal and a request for settlement and certification of this statement for use on appeal in lieu of the reporter's transcript. The petition for settlement and certification of this proposed statement was denied on November 8, 1951 and notice of appeal from this order of November 8 was filed on January 7, 1952. It is this appeal which respondents move to dismiss. The motion is made on the ground that an order refusing to settle a record on appeal is not included in the orders in probate proceedings from which an appeal is authorized to be taken by section 1240, Probate Code.

It must be taken as thoroughly settled that, with the single exception of appeals from orders granting motions for new trial, which exception traces back to In re Bauquier, 88 Cal. 302, 26 P. 178, 532, no appeal will lie from any order in probate not specified in Prob.Code, sec. 1240. See Estate of Hart, 92 Cal.App.2d 691, 208 P.2d 59, where the history of this rule is traced and the cases assembled.

In Wood v. Peterson Farms Co., 214 Cal. 94, 3 P.2d 922, 923, the court held that in civil actions an appeal will lie from an order terminating proceedings for a record on appeal under subdivision 2 of section 963 Code of Civil Procedure which authorizes an appeal from 'any special order made after final judgment.' But while special orders made after final judgment are appealable in civil actions under sec. 963, subd. 2, Code Civ.Proc. they have uniformly been held nonappealable if made in probate. Estate of O'Dea, 15 Cal.2d 637, 104 P.2d 368; Estate of...

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4 cases
  • McManus' Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • March 25, 1963
  • Garcia's Estates, In re
    • United States
    • Arizona Court of Appeals
    • January 22, 1968
    ... ... Beatrice FLORES, Anita Flores, Soledad Hubbard and Angelita Lopez, Appellants, ... Armando GARCIA, Individually and as Fiduciary of the Estate of Maria Lopez de Garcia, Deceased, and Armando Garcia and Manuel Garcia, as Co-Fiduciaries of the Estate of Francisco U. Garcia, Deceased, ... ...
  • Wilhelm's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • July 26, 1957
    ...by law.' Const. Art. VI, secs. 4, 4b. The right of appeal in probate matters is purely statutory.' In Re Estate of Noonan, 113 Cal.App.2d 899, at page 900, 249 P.2d 306, at page 307, it was said: 'It must be taken as thoroughly settled that, with the single exception of appeals from orders ......
  • Fallon's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • March 25, 1957
    ...motions for new trial, no appeal will lie from any order in probate not specified in Probate Code, Section 1240. In re Estate of Noonan, 113 Cal.App.2d 899, 900, 249 P.2d 306; In re Estate of O'Dea, 15 Cal.2d 637, 104 P.2d 368, in which latter case it was held on that ground that in probate......

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