IN RE: DAVIS' ESTATE. (1940)

In his petition for a rehearing counsel for appellant takes us to task because we did not cover the point relating to the failure of respondent to plead an estoppel. He cites authorities to the general rule that the party relying upon estoppel must plead it otherwise it will be deemed waived. Like all other rules of law and procedure this one has its exceptions.

There are so many grounds upon which appellant's argument shatters that we will be content with stating them without expansion of the reasons controlling the principles. (1) The proceedings were taken under section 1080 of the Probate Code to declare heirship. That section permits any person to appear and file a written statement setting forth his interest in the estate. “No other pleadings are necessary”. The defendant-respondent complied with the terms of this section. (2) The case was tried in the court below upon the mutual belief that estoppel was an issue, and the evidence covering the issue was admitted without objection, and upon the invitation of appellant. He may not object for the first time on appeal that the issue was not properly pleaded. 2 Cal.Jur. p. 239; Woody v. Security Trust & Savings Bank, 137 Cal.App. 29, 32, 29 P.2d 898. (3) The appellant, having invited the trial of the issue of estoppel, filed an opening and a closing brief in which he failed to mention the question of pleading. This point was raised in the oral argument for the first time. When a question is raised in this manner by an appellant to defeat a judgment there is greater reason why it should be disregarded than when it is raised by the respondent to support the presumption of the validity of the judgment. Here neither the trial court nor the respondent was given an opportunity to consider the question whether in a special proceeding under section 1080 of the Probate Code, it is necessary to plead the facts of estoppel. For these reasons the question should not be heard here when raised for the first time on the oral argument.

The petition is denied.

PER CURIAM.