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District Court of Appeal, Third District, California.


Civ. 5575.

Decided: January 20, 1936

Busick & Busick, of Sacramento, for petitioner. Horace B. Wulff, of Sacramento, for respondents. Driver, Driver & Tade, of Sacramento, for respondent executrix.

This cause is before us upon a petition for a writ of review seeking the order and judgment of this court annulling and setting aside an order of the superior court made and entered on the 3d day of January, 1936, in the Matter of the Estate of Julius Blauth, deceased, requiring the petitioner herein to file a written undertaking in the sum of $10,000, in support of her appeal in the matter of said estate, taken by petitioner from an order of the superior court theretofore made directing the sale of certain property belonging to the estate of said deceased.

The record shows that the executrix of the estate had given notice of the sale of certain real property; that a return had been made thereof; that objections to the sale had been filed; that a hearing had been had; and the sale as reported by the executrix confirmed. From the order confirming the sale, the petitioner herein appealed to the Supreme Court. Thereafter, upon petition of the executrix, the order was made which we have referred to, requiring the petitioner to file a bond in the sum of $10,000. The bond appears to have been required under and by virtue of the provisions contained in section 949 of the Code of Civil Procedure. However, from what will hereinafter be stated, it is unnecessary to decide whether that section permits the requiring of a bond under the conditions presented by the record in this case, for the simple reason that the petitioner has a remedy provided for by section 963 of the Code of Civil Procedure. That section provides, in subdivision 2 thereof, for the taking of an appeal from an order made after final judgment. The order involved in this case, and which the petitioner seeks to have set aside by this proceeding, appears to be an order taken after final judgment. Therefore the conclusion seems to be inescapable that the petitioner in this cause has a remedy by appeal.

In the case of Meserve v. Superior Court, 2 Cal.App.(2d) 468, 38 P.(2d) 453, 456, an almost identical question was presented. We do not need to recite the facts, but will set forth paragraph 6 of the opinion, which holds that an appeal lies from such an order, as follows: “If the superior court had jurisdiction to decide the motions in favor of petitioners, it would seem that it also has jurisdiction to decide such motions against them; or, in other words, it has the power to decide such motions even if its decision is wrong. Raine v. Lawlor, 1 Cal.App. 483, 82 P. 688. Again assuming that the superior court had jurisdiction to entertain the motions made by petitioners, in our opinion appeals would lie from the orders denying said motions, as upon special orders after final judgment; and, if the appeal did not act as a stay under section 949, Code of Civil Procedure, still it would be plain, speedy, and adequate, in view of the power of the appellate court to issue a supersedeas. Glougie v. Superior Court, 169 Cal. 675, 147 P. 972.”

It follows from what has been said that the superior court had jurisdiction to pass upon the motion, and, even though it erred in requiring the giving of a bond and misconstrued the section, its jurisdiction was not thereby affected, and the remedy of the petitioner is by appeal from the order.

The petition should be denied, and it is so ordered.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.