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District Court of Appeal, Second District, Division 2, California.


Civ. 13942.

Decided: January 27, 1943

Fred A. Shaeffer, of Santa Maria, for petitioner. Griffith & Thornburgh, of Santa Barbara, for respondents.

The will of Susan K. Triplett was filed for probate and the hearing on the petition of Marion A. Smith and Ida Iliff, who had been named as executors in the will, for letters testamentary was set for hearing by respondent court for October 9, 1942, at 10:00 o'clock a.m. Before the time set for the hearing Charles Elwood Triplett, a grandson of decedent, filed a contest to the petition and the matter was continued to November 13, 1942, for further hearing. At about 12:00 m. on October 9, 1942, upon his ex parte application, Charles Elwood Triplett was appointed special administrator of the Triplett estate by written order signed by the judge, the order reciting that the court heard the evidence in support of the application and was satisfied that the circumstances of the estate required the immediate appointment of a personal representative. The court ordered that special letters issue upon the filing of a bond in the sum of $10,000 and the taking of the oath required by law. A bond in the sum of $10,000 was filed by petitioner, the oath taken and special letters of administration were issued to him on October 10, 1942.

Without notice to Charles Elwood Triplett and without the filing of a petition for his removal the court on October 14, 1942, signed and filed an order purporting to vacate the appointment theretofore made of the special administrator, the order reading as follows: “Good cause appearing therefor, It is ordered that the order heretofore made herein on the 9th day of October 1, 1942, appointing Charles Elwood Triplett as special administrator in the above entitled estate, be and the same is hereby vacated and set aside, upon the ground that said order was made and entered through inadvertence and mistake.” On October 15, 1942, the court made an ex parte order in writing appointing Marion A. Smith and Ida Iliff special administrators of the Triplett estate.

Charles Elwood Triplett filed in this court on October 30, 1942, a petition for a writ of certiorari for the purpose of annulling the order made on October 14, vacating his appointment as special administrator. Thereupon this court issued its writ commanding respondent court to certify a complete transcript of the records and proceedings in the matter of the Triplett estate. In response thereto respondent has filed herein a transcript which shows, in addition to the matters above set forth, that the court on November 14, 1942, made an order “nunc pro tunc as of the 14th day of October, 1942,” vacating the order made on October 9, 1942, whereby petitioner was appointed special administrator, and setting forth the reasons for the making of the nunc pro tunc order. It is set forth therein that numerous matters were set for hearing on the calendar on October 9, 1942; that at the close of the morning session the clerk of the court handed to the judge twelve orders to be signed; that the attorney for Charles Elwood Triplett had previously handed to Ira Altschul, clerk of the court, without consulting either the clerk or the Honorable Ernest D. Wagner, judge of said court, an order appointing a special administrator; that at no time did the attorney consult with, discuss or in any manner take up with the court or the judge thereof the question of appointing a special administrator in the matter. The order further sets forth that Charles Elwood Triplett had been left the sum of $1.00 only in the will, that under the provisions of the Probate Code preference must ordinarily be given to the person entitled to letters testamentary or administration; and that in signing the orders for matters duly and regularly heard for that day the court “inadvertently and by mistake” signed the order appointing a special administrator for the Triplett estate; and that had the court been advised in the premises the order would not have been signed.

It further appears from the transcript filed herein by respondent that on December 4, 1942, the clerk of respondent court, Ira D. Altschul, on duty on October 9, 1942, filed an affidavit in which he stated: “That Charles Elwood Triplett was sworn as a witness to testify in the matter of the application for special letters of administration in said estate and did testify in said matter. That after the said Charles Elwood Triplett had completed his testimony Fred. A. Shaeffer, attorney for said petitioner, handed to your affiant and your affiant handed to Ernest D. Wagner, Judge of said superior court, an order appointing said Charles Elwood Triplett as special administrator of said estate. That thereupon the said judge signed the said order appointing the said special administrator.” An affidavit was filed by Charles Elwood Triplett on December 4, 1942, in which he stated that on October 9, 1942, he was sworn as a witness in the court room and that he testified among other things concerning the extent of the property left by decedent and that the estate consisted of several houses and a ranch which were being rented.

A court does not have the power to remove a special administrator who has been appointed by ex parte order without a showing of cause therefor and, of course, notice of a motion to remove must be given. Although in a proper case such an order may be vacated because of inadvertence, it may not be vacated because the court after making the order came to the conclusion that a mistake had been made in appointing one as special administrator when another had a prior right to the appointment. Sheldon v. Superior Court, 42 Cal.App.2d 406, 108 P.2d 945. The power of the court to correct errors in its records and proceedings and to set aside orders which were made inadvertently does not extend so far as to permit the vacation of an order made as the result of the exercise of judgment. When an issue has been submitted to a court after the admission of testimony and an order made thereon, the court is without power to subsequently make an ex parte order setting aside the former order because upon a re–examination of the same matter it may have reached a different conclusion. If the first order should be found to be erroneous it would constitute a judicial error, subject to review in the manner provided by law. Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988.

The uncontradicted evidence in the present proceedings shows that on October 9, 1942, the court considered the application for the appointment of a special administrator, received sworn testimony thereon, and thereafter made an order granting the petition, appointing the special administrator and fixing his bond. The court in its order specifically stated that it had “heard the evidence in support of the application” and was satisfied that the circumstances of the estate required the appointment. The order constituted a formal record representing the performance of a judicial act and the exercise of judicial discretion. The recital in the order made on October 14, 1942, that the order of October 9, 1942, had been entered “through inadvertence and mistake” is not conclusive of the nature of the error. In re Estate of Burnett, 11 Cal.2d 259, 79 P.2d 89. Nothing appears in the narrative of facts in the nunc pro tunc order made on November 14, 1942, which is in substantial conflict with the statements made in the affidavits presented by petitioner. A statement is made in the order that the attorney for petitioner did not “consult with, discuss nor in any manner take up with the said court nor the judge thereof the question of appointing a special administrator in said matter.” Petitioner does not claim that he consulted the court or discussed with the court the matter of the appointment. The statement that the attorney did not “in any manner take up” with the court the matter of the appointment is too indefinite to amount to a contradiction of the positive statements made in the two affidavits filed on behalf of petitioner. If error was made by the court on October 9, 1942, it was inherently judicial rather than clerical or inadvertent and the court had no power thereafter to set it aside by an ex parte order.

For the foregoing reasons the orders made on October 14, 1942, and the nunc pro tunc order made on November 14, 1942, are annulled. The order made on October 15, 1942, appointing Marion A. Smith and Ida Iliff special administrators is annulled. Petitioner shall recover his costs incurred by this proceeding, which shall be chargeable against the estate of Susan K. Triplett.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concurred.