LILIENKAMP v. SUPERIOR COURT OF LOS ANGELES COUNTY (1938)

This is an original application for a writ of review of a nonappealable order of respondent court. Pursuant to the provisions of Article 6, section 4c, of the Constitution of the state of California, the Supreme Court has transferred the matter for decision to this court.

Respondent has filed (a) motion to quash the writ of review and (b) demurrer to the petition for the writ.

The essential facts are:

March 16, 1938, the administratrix of the estate of Louie E. Raymond, deceased, filed a petition with respondent court praying for an order approving an agreement entered into by the sole heirs of deceased, which contained among other provisions that (1) $15,000 and a Buick car, both property of the estate, should be distributed to petitioner Ida Lilienkamp, and (2) $1000 of the estate should be distributed to petitioner Immanuel Presbyterian Church of Los Angeles. May 5, 1938, respondent made an order approving the agreement and authorizing distribution to petitioners as above mentioned.

June 24, 1938, Howard D. Raymond, one of decedent's heirs, filed a motion pursuant to the provisions of section 473 of the Code of Civil Procedure to set aside the order of May 5, 1938. On June 30, 1938, this motion was granted without any notice of the motion having been served upon petitioners here.

These are the questions to be determined:

First. Does a demurrer lie to test the sufficiency of a petition for a writ of review after such writ has issued?

Second. Before a probate court acquires jurisdiction to vacate an order pursuant to the provisions of section 473 of the Code of Civil Procedure, is it necessary that notice be served upon persons who will be affected by the order but who have not appeared in the probate proceeding?

The first question must be answered in the affirmative. The law is established in California that it is proper practice in response to a writ of review to file a demurrer to the petition for the writ for the purpose of testing whether sufficient facts were alleged in the petition to warrant the issuance of the writ of review. Stewart v. Superior Court, 101 Cal. 594, 595, 36 P. 100; Pacific Home B.R. Co. v. Daugherty, 75 Cal.App. 623, 626, 243 P. 473.

The second question must be answered in the negative. The law is settled that notice of a motion or other paper need not be served upon any person who has not appeared in an action or proceeding. Sec. 1010, Code Civ.Proc.; Estate of McDougald, 143 Cal. 476, 480, 77 P. 443; 11B Cal.Jur. [[[[1934] 712. In Estate of Kent, 6 Cal.2d 154, 57 P.2d 901, is a complete discussion of the theory which supports this rule.

Since it was unnecessary that notice be given petitioners of the motion to set aside the order of May 5, 1938, their contention that the trial court was without jurisdiction to make the order which is here questioned is unfounded. The petition for a writ of review thus fails to state facts sufficient to warrant the issuance of a writ.

The demurrer is sustained and the motion to quash is granted.

McCOMB, Justice.

We concur: CRAIL, P.J.; WOOD, J.