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

Habib A. BALIAN, Jacob Balian and Kameel Balian, Petitioners, v. SUPERIOR COURT OF LOS ANGELES, COUNTY, CALIFORNIA, and Goodwin J. Knight, Judge of Said Court, and Abraham Balian and Samuel Balian, Executors of the Estate of Alexander Balian, Deceased, Respondents.

Civ. 14953.

Decided: May 01, 1945

John C. Miles and Lee J. Myers, both of Los Angeles, for petitioners. Elbert E. Hensley, of Los Angeles, for respondents Abraham Balian and Samuel Balian, executors of Estate of Alexander Balian.

Petition for writ of mandate is denied.

I dissent from the order denying the writ of mandate. See Probate Code, § 382; In re Estate of Green, 25 Cal.2d 535, 154 P.2d 692. The court should have made findings as a basis for its judgment. A contest for the revocation of a will is governed by the Code of Civil Procedure (§ 1230, Probate Code; Estate of Morrison, 125 Cal.App. 504, 507, 14 P.2d 102; O'Day v. Superior Court, 18 Cal.2d 540, 542, 116 P.2d 621; Prothero v. Superior Court, 196 Cal. 439, 238 P. 357) and not by Section 1240, Probate Code. Since no provision is made (Code Civil Proc. § 963) for an appeal from an order awarding a judgment notwithstanding a verdict, it must have been intended that, in granting such a motion, the court would make its written decision to take the place of the jury's findings. Otherwise, judicial error might not be demonstrated. There is no statute to indicate that in any civil contest the judge may base a judgment upon his order rather than upon findings. No judgment is sacrosanct because with it the judge has supplanted the verdict of a jury which had been empaneled to determine the facts. In re Estate of Green, supra.