Opinion
Rehearing denied.
Application for a writ of review to the Superior Court of San Diego County.
COUNSEL:
J. E. Deakin, for Petitioner.
Hunsaker, Britt & Lamme, Trippet & Neale, and Smith, Howard & Smith, for Respondent.
JUDGES: In Bank. Paterson, J. Sharpstein, J., McFarland, J., and Works, J., concurred.
OPINION
PATERSON, Judge
[22 P. 72] On the twenty-third day of June, 1888, after due proceedings had, a decree of distribution was made and entered in the superior court of San Diego County in the matter of the estate of Maria A. E. de Pedrorena, deceased. Within six months thereafter, to wit, on December 20, 1888, the court, on motion of certain interested parties, vacated and set aside said decree of distribution.
The petitioner herein now asks for a writ of review, claiming that the court exceeded its jurisdiction in making the order vacating the decree of distribution.
We think that the court had the power at any time within six months after the entry of the decree to set it aside on a proper showing. (Estate of Hudson , 63 Cal. 454; Code Civ. Proc., sec. 1713.)
The applications were based on the grounds of mistake, inadvertence, and surprise, and fraud on the part of this petitioner. The order of the court is made a part of the petition herein, and it shows that affidavits of merit were presented to the court, and that all parties interested "were duly served with due notice of said motion," and that no one appearing to contest said motions, or either of them, the court proceeded to hear the same, and the respective petitions and affidavits in support thereof, and after due consideration, the court being convinced that justice required that said motions should be granted, the decree was set aside.
Petitioner herein attempts to show that the notice was insufficient, but the most that can be said against its sufficiency is, that it was defective merely, and the order is not void on that account. The recitals in the order of facts essential to jurisdiction are conclusive in this proceeding. The record cannot be amended or attacked, but must be taken as we find it, at least as to all matters of fact adjudicated therein. It is not a proper function of the writ of review to add to or modify the record with respect to jurisdictional facts determined therein, but to test the question of jurisdiction on the facts appearing on the face thereof. (Freeman on Judgments, secs. 126, 619; In re Grove Street , 61 Cal. 453; Ex parte Sternes , 77 Cal. 156.)
Other points are made against the validity of the order, but conceding the facts alleged to be true, the remedy of petitioner, if any there be, is by motion in the court below to set aside the order.
Application denied.