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Mills v. Mills

111 Cal. App. 2d 83 Court First Dist., Div. Two. Decision date 1952-05-14 Docket Civ. No. 15379 English

Delivered by DOOLING, J.

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p. 83
[Civ. No. 15379.
First Dist., Div. Two.
May 14, 1952.]
Estate of EDWIN B. MILLS, Deceased. HELEN C. MILLS, as Administratrix, etc., Appellant, v. ANNA EDNA MILLS, Respondent.
Nichols, Elerding & Sherman for Respondent.

This is a motion to dismiss an appeal from an order settling an account and allowing certain fees for extraordinary services. A minute order was entered in the matter on December 21, 1951 and a more formal written order signed by the judge on December 27. The minute order contained no direction for a written order and the movant asserts that under rule 2 (b) (2), Rules on Appeal, the minute order is the appealable order in which event the notice of appeal filed on February 25 was not in time.

It is settled that under rule 2 (b) (2) even though there is no direction in the minute order for the preparation

p. 84
of a written order if the minute order omits any essential portion of a valid order, such as findings when necessary, the minute order is not the appealable order. (Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335 , 346-347 [ 182 P.2d 182 ]; People v. Gordon, 105 Cal.App.2d 711 , 717 [ 234 P.2d 287 ] ; Estate of Dow, 91 Cal.App.2d 420 , 423 [ 205 P.2d 698 ] ; Hirschberg v. Oser, 82 Cal.App.2d 282 , 286 [ 186 P.2d 53 ].)

In probate proceedings the code expressly requires a finding of the giving of the required notice of the hearing. (Prob. Code, § 1200; Estate of Kauffman, 63 Cal.App.2d 655 , 659-660 [ 147 P.2d 11 ] ; Estate of Dow, supra, 91 Cal.App. 2d at p. 432.) This essential finding does not appear in the minute order of December 21.

Motion to dismiss denied.

Nourse, P. J., and Goodell, J., concurred.

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