Parkman v. Superior Court

Certiorari.

The record herein shows in substance that the respondent Superior Court had jurisdiction in a certain probate proceeding before it wherein final distribution of an estate was ordered, which, in accordance with the terms of the will therein involved, included distribution to W.

On the part of the respondent herein it is urged, among other things, that if, as contended by petitioner, the order of dismissal be construed as one finally dismissing and disposing of the proceedings, it is appealable, and consequently that certiorari will not lié.

, There would seem to be no question but that a probate court, as originally constituted, and as separated and distinguished from the now existing Superior Court, had no jurisdiction in a matter of the nature of that involved in the controversy which is the foundation for the present proceeding before this court. [1] The real business of the probate court is the settlement of estates of deceased persons. When the order of final distribution and discharge of the executor under the will or the administrator of the estate has been entered, the work of the probate court with reference to the estate is ordinarily ended. [2] As distinguished from the settlement of the estate, whatever additional legal

In the case of Estate of Davis, 136 Cal. 590 , 597 [ 69 Pac. 412 , 414], in treating the subject of jurisdiction of probate courts, the following language is used: “It may be said that at the .present time in this state there is no probate court in the sense that the term has been used in the earlier volumes of the California reports. Under the fundamental law there is a probate jurisdiction vested in the superior court. It may be said that the probate court is gone, but that the probate jurisdiction remains. And that jurisdiction is now vested in the same court that exercises jurisdiction in cases of law and equity. Yet the probate jurisdiction of the superior court is different from its law and equity jurisdiction in this,-—it is essentially a jurisdiction under the control of the state legislature. That law-making power may enlarge it or may restrict it. The character and extent of the jurisdiction is not only a matter under legislative control alone, but the procedure by which that jurisdiction may be invoked and rights thereunder adjudicated is expressly laid down by statute; and that procedure must be followed, or relief under that jurisdiction cannot be secured. While the superior court in this state exercises both equity and probate jurisdiction, still the procedure to be followed in seeking relief within those two jurisdictions is widely varied. And if the probate procedure laid down by the code is followed, then only relief under probate jurisdiction can be

In the case of More v. More, 133 Cal. 489 [ 65 Pac. 1044 , 66 Pac. 76 ], which was a suit to establish the fact that certain deeds to real property had been procured by fraud and undue influence, and as a consequence, to compel a reconveyance of such property, or for general relief, one of the defenses was that the plaintiffs were estopped by a judgment rendered in the matter of an estate under the provisions of section 1664 of the Code of Civil Procedure, which authorized the institution of a proceeding in the course of administration of an estate for the purpose of determining heirship. In ruling against the contention of defendants therein, the court took occasion to lay down certain principles affecting the jurisdiction of probate courts, and reached a conclusion similar to that expressed in the case heretofore cited herein.

The case of Morffew v. San Francisco & San Rafael R. R. Co., 107 Cal. 587 [ 40 Pac. 810 ], was one in which a testator devised all his property to his wife in trust for his children. In the course of the administration, the lands belonging to the estate having been distributed in accordance with the provisions of the will, it was held fp. 594) that, in the absence of sections 1699 to 1703 of the Code of Civil Procedure, the probate court thereupon had no further control of the trust.

A case which in its declaration of the law goes somewhat beyond that which is stated in either of the, foregoing cases is that entitled King v. Chase, 159 Cal. 420 [ 115 Pac. 207 ]. It is there held that since the enactment of section 1639 of the Code of Civil Procedure, which empowers the probate court to compel a personal representative of a deceased executor or administrator to render an account of the distribution of the estate of his testator or intestate, an action in equity will not lie for the same purpose—for the reason that the jurisdiction formerly existing in courts of equity “was based solely on the lack of any statutory method of accomplishing the same end by proceeding in probate.”

[3] From a consideration of the foregoing authorities it becomes clear that the proceeding initiated by petitioner in the probate court was entirely independent of any adminis

According to the statutory provisions, judicial remedies are such as are administered by courts of justice and are divided into two classes—(1) actions, and (2) special proceedings. (Secs. 20, 21, Code Civ. Proc.) An action is denied as “an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense”; and every other remedy is a special proceeding. (Secs. 22, 23, Code Civ. Proc.)

[4] It is apparent that if the petition be considered as a special proceeding, the order by the judge sitting in probate dismissing the citation constituted the basis of the final determination thereof. In order to dispose of the question presented for decision, we shall assume further that the order is in effect a final order, though not formally entered as such. Section 963 of the Code of Civil Procedure provides that an appeal may be taken from the superior court: “ (1) From a final judgment entered in an action or special proceeding, ...”

The case of McAdoo v. Sayre, 145 Cal. 344 [ 78 Pac. 874 ], would seem conclusive as to the ultimate question here presented, in that it is there ruled that an appeal lies from any order made by the probate court in a proceeding of the nature of that involved herein. In that case, as in the instant case, a proceeding was brought under section 1699 of the Code of Civil Procedure, but therein for the purpose of terminating a trust and directing the trustees “to pay over, convey, and deliver the property” of the trust estate to thé person who claimed to be entitled thereto. According to the statement contained in the opinion rendered by

“It is further provided'in section 1699 of the Code of Civil Procedure that the report accompanying the account must give the names and postoffice addresses, if known, of the cestuis que trust. This the report in question failed to give, and it is claimed that for that reason the proceeding is void, and that prohibition will lie to prevent further action therein. This, however, would not be sufficient cause for a writ of prohibition. An appeal lies from any order that may he made in the proceeding and it will furnish a sufficient remedy to any person aggrieved hy the action of the court in attempting to proceed without jurisdiction.”

Section 1068 of the Code of Civil Procedure lays down the conditions under which a writ of certiorari may be granted. Among them is the provision that the writ will lie only where it appears that “there is no appeal” from the action of the court which is sought to be reviewed.

From the case of McAdoo v. Sayre, supra, it clearly appearing that the order to which the consideration of the

Conrey, P. J., and York, J., concurred.