IN RE: COSTA'S ESTATE.

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

IN RE: COSTA'S ESTATE. COSTA et al. v. RIDDLE et al.

Civ. No. 17840.

Decided: December 07, 1950

Joseph D. Taylor, Los Angeles, for appellants. Alfred F. Baughn, Hollywood, for respondent Dan L. Culling, Jr., executor.

This is an appeal from the order of distribution and from the order denying a petition to determine heirship.

The chronology of the proceedings, which is of paramount importance in arriving at a proper determination, is as follows:

April 21, 1947, letters of administration issued to respondent.

January 17, 1949, final account, report and petition for distribution filed by respondent alleging that the whole of the estate was separate property; that Peggy Rita Costa (decedent's wife) was the next of kin and heir at law of deceased and that she had died on May 26, 1948.

February 4, 1949, objections and exceptions to final account filed by the executor of the estate of Peggy Rita Costa, deceased. Hearing on final account and petition for distribution set for February 14 in the Long Beach Branch of the Superior Court continued to February 28.

February 28, 1949, 9:30 A. M., stipulation in re withdrawal of objections to final account, report and petition for distribution entered into between respondent and the executor of the estate of Peggy Rita Costa, deceased, and supplemental final account, report and petition for distribution filed by respondent. Objections to final account ordered off calendar. Account settled and distribution ordered.

February 28, 1949, 2:00 P. M., objections to distribution filed by appellant Lorenzo Costa.

March 3, 1949, 9:30 A. M., orders of February 28 vacated and set aside by court in Long Beach upon its own motion. Nunc pro tunc as of February 28 hearing ordered continued to March 28, 1949.

March 3, 1949, 10:15 A. M., notice of motion to set aside and vacate orders of February 28 filed by appellants.

March 28, 1949, petition to determine heirship and interest in estate filed by appellants.

June 7, 1949, motion to set aside and vacate orders denied. Objections to distribution overruled. Petition to determine heirship denied. Objections and exceptions to final account, report and petition for distribution overruled. Final account as supplemented by supplemental account settled, report approved and distribution ordered.

The jurisdiction of the probate court is a jurisdiction in rem. It is established when the appropriate petition has been filed and notice required by the statute has been given. Estate of Wise, 34 Cal.2d 376, 382, 210 P.2d 497; Lilienkamp v. Superior Court, 14 Cal.2d 293, 298, 93 P.2d 1008. Unless the orders of February 28 settling the account and ordering distribution were vacated by the order made on March 3, 1949, the objections to distribution filed by appellant subsequent thereto were too late. The court was without power, however, upon its own motion or upon ex parte application to vacate or set aside its prior orders. A trial court upon its own motion or on ex parte application has jurisdiction to correct mistakes in its orders and records which are not actually the result of the exercise of judgment. Estate of Burnett, 11 Cal.2d 259, 262, 79 P.2d 89; Phipps v. Superior Court, 32 Cal.App.2d 371, 374, 89 P.2d 698. Aside from statute it has an inherent power to correct judgments where there has been a clerical error but is without power sua sponte to correct judicial errors. Morgan v. State Bd. of Equalization, 89 Cal.App.2d 674, 677, 201 P.2d 859; Estate of Burnett, 11 Cal.2d 259, 262, 79 P.2d 89; Lane v. Superior Court, 98 Cal.App.2d 165, 219 P.2d 497.

There is no evidence in the record of a clerical error upon the part of the court or the clerk. Since the court was without power to vacate the orders of February 28 upon its own motion, it follows that it was without jurisdiction to hear the objections to distribution filed at 2:00 P. M. on that date or to determine any issues raised thereby. The court had no authority to order on March 3 ‘nunc pro tunc as of February 28, 1949,’ that the hearing on the account and petition for distribution and the objections to the final account be continued to March 28, since such an order is to make the record speak the truth—to correct the record so as to show an order actually made on a previous date but which does not appear in the record or to show an order in its correct form where the record shows it incorrectly.

There is no merit in appellants' contention that because notice had not been given of the hearing on the supplemental account on February 28, the order on that date was void. Notice was posted of the hearing on the final account, report and petition for distribution. No notice was required of the settlement of the supplementary account. Probate Code, sec. 1020.5; Estate of Sheid, 129 Cal. 172, 175, 61 P. 920.

The orders of February 28 being final, the only proceeding which the court had jurisdiction to hear was appellants' motion to vacate which should have been granted under section 473 of the Code of Civil Procedure. The affidavit of appellants' counsel supporting their notice of motion recited that on February 28, 1949, at 2:00 P. M. he appeared in the Long Beach Branch of the Superior Court for the purpose of presenting objections to the distribution of the estate; at that time he represented to the court that decedent had a brother living in Italy who was entitled as an heir to a portion of the estate; he was thereupon informed by the court that the matter had appeared upon the calendar at 10:00 A. M. and the petition for distribution and final account had at that time been heard and a minute order entered; in the Register of Actions in the Probate Clerk's [main] office at Los Angeles the record reads that the hearing on the final account and petition for distribution was set for 2:00 P. M. and that he relied upon that record in appearing in Long Beach at 2:00 P. M. instead of at 9:30 A. M. Appellants have not, however, appealed from the denial of their motion and it cannot therefore be given consideration by this court.

The court erred in denying the petition to determine heirship. If it had had jurisdiction to hear the petition it should have determined who were the heirs of the decedent or entitled to distribution of the estate. (Probate Code, sec. 1081.) But the court was without jurisdiction to hear the matter. At the time the petition was filed section 1080 of the Probate Code provided, in part, as follows: ‘When the time to file or present claims against the estate has expired, but the estate is not in a condition to be closed, any person claiming to be an heir of the decedent or entitled to distribution of the estate or any part thereof may file a petition setting forth his claim and praying that the court determine who are entitled to distribution of the estate.’ A proceeding under this section (former Code Civ.Proc., sec. 1664) is a ‘special’ proceeding within the meaning of section 23 of the Code of Civil Procedure and the court in the exercise of its jurisdiction is limited to the terms and conditions of the statute under which the proceeding is authorized. Smith v. Westerfield, 88 Cal. 374, 378, 26 P. 206; Estate of Wise, 34 Cal.2d 376, 381, 210 P.2d 497. The final account, report and petition for distribution was filed on January 17, 1949, and the account was settled and distribution ordered on February 28. The petition to determine heirship was not filed until March 28, 1949, and since it was not timely, the petition instead of being denied should have been dismissed.

Order denying petition to determine heirship reversed with directions to dismiss the petition. Order of June 7 approving report and final account as supplemented and order for distribution reversed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.