Shipman v. Unangst — 150 Cal. 425

Majority

p. 425

[S. F. No. 4654.

In Bank.

February 5, 1907.]

ELIZA SHIPMAN et al., Petitioners, v. E. P. UNANGST, Judge of the Superior Court, etc., Respondent.

Headnote

Estates op Deceased Persons—Order Setting Apart Homestead-^Family Allowance—New Trial.—A motion for a new trial is not a proper procedure for the reconsideration of orders setting apart a homestead and exempt property to a widow, and awarding her a family allowance, as it is the duty of the court ex parte and without petition to make such orders.

Id.—Bill op Exceptions—Appeal prom Order.—A bill of exceptions, presented to be used on such a motion, cannot be settled as a bill to be used on appeal from such orders when it was presented. too late for such purpose.

APPLICATION for a Writ of Mandate directed to the Judge of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.

The facts are stated in'the opinion of the court.

S. V. Wright, for Petitioners.

W. M. Shipsey, for Respondent.

In the course of the probate proceedings in the matter of the estate of Patrick Moore, deceased, the court made its order setting apart a homestead to the widow, with certain property as exempt from execution, and also awarded her a family allowance, all in accordance with sections 1465 and 1466 of the Code of Civil Procedure. Subsequently petitioners herein gave notice of intention to move for a new trial, and moved therefor, presenting for settlement a bill of exceptions to be used on said motion. The court refused to settle the bill and petitioners applied for mandate. In Leach v. Pierce, 93 Cal. 614 , [ 29 Pac. 235 ], this identical question came before the court, and it was there decided that a motion for a new trial was not a proper procedure after an order for a family allowance had been made; that it is the duty of the court ex parte and without petition to

p. 426

make such orders. What is there said-is decisive of the question under this application.

It is, however, urged by petitioners that the bill should be settled as a bill of exceptions to be used upon their appeal from the order. If the circumstances permitted, this court would so hold, as was done in Leach v. Pierce, 93 Cal. 614 , [ 29 Pac. 235 ], But, treating the proposed bill of exceptions in this case as a bill of exceptions to be used on appeal from the order, its presentation was entirely too late.

The application for mandate is therefore denied.

Angellotti, J., McFarland, J., Sloss, J., Shaw, J., and Lorigan, J., concurred.

Rehearing denied.

Cases cited

Leach v. Pierce 93 Cal. 614 Cal. 1892-03-12 p. 425, p. 426