Elkins v. Superior Court

Petition for writ of review.

The sole question is whether or not the procedure allowed on motion for new trial in civil actions may properly be applied to a judgment or order for the settlement of the final account of an administrator where an heir at law has presented an issue, by written objections solely to certain items of attorney’s fees claimed by the administrator for ordinary and extraordinary services of his attorney.

This question is answered by a consideration of what were formerly sections 1714 and 1636 of the Code of Civil Procedure in force at the time in question. The former section provided as follows:

“The provisions of part two of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title; provided, that hereafter a motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings under section one thousand six hundred sixty four of this code and in those cases where the issues of fact, of which a new trial is sought, were tried by a jury or were of such character as to entitle the parties to have them tried by a jury whether or not they were so tried.”

The latter section provided in part as follows: “ . . . Whenever an allowed claim is contested by any heir, or

Jury trials in probate proceedings were unknown to the common law and hence must have express statutory authority to be allowed. (Estate of Dolbeer, 153 Cal. 657 [15 Ann. Cas. 207, 96 Pac. 266 ]; Estate of Baird, 173 Cal. 622 [ 160 Pac. 1076 ]; Carter v. Waste, 159 Cal. 25 [ 112 Pac. 727 ].) It has several times been expressly held that in the absence of a statute so providing, trials by jury in the settlement of accounts in probate are not allowed. (Estate of Moore, 72 Cal. 335 [ 13 Pac. 880 ]; In re Sanderson, 74 Cal. 208 [ 15 Pac. 753 ]; Estate of Franklin, 133 Cal. 587 [ 65 Pac. 1081 ].)

It will be noted that under said latter provision of the statute, where the parties were entitled to a jury trial, the claim in question must be an allowed claim. An heir at law may -contest generally the items of the account, but a jury trial is permitted only in a contest aimed at an allowed claim. Allowed claims were treated in what was then chapter VI, sections 1490-1514, of said Code of Civil Procedure. Among other things, the law requires that an allowed claim be approved by both the administrator and the judge of the superior court (sec. 1496). We are not permitted to extend this right further than the plain provisions of the statute. A claim for attorney’s fees, however, is not an allowed claim within the meaning of the statute. Liability íot attorney’s fees is an expense of administration. Many of the items involved here too are allowable only in the discretion of the court. It is true that under sections 1616 and 1619 of said code, as they formerly read, and as the Probate Code now reads, an attorney himself may apply to the probate court directly for an allowance upon his compensation, but this does not constitute his demand an allowed claim within the meaning of the chapter above referred to.

This case arises from the following facts: In the above-entitled estate, the administrator, as public adminis

Manifestly if the procedure in civil eases on motion for new trial is inapplicable, both the purported order granting the new trial and the additional order allowing the items theretofore rejected are beyond the jurisdiction of the court. (Diamond v. Superior Court, 189 Cal. 732 , 740 [ 210 Pac. 36 ]; Stanton v. Superior Court, 202 Cal. 478 [ 261 Pac. 1001 ].)

It follows that said orders granting the motion for new trial and the order which followed it are annulled.

Curtis, J., Langdon, J., Shenk, J., Seawell, J., Richards, J., and Waste, C. J., concurred.

Rehearing denied.