Opinion
Appeal from the Probate Court of Santa Clara County.
The executors of the decedent filed their second annual account, and in September, 1876, the Court made an order allowing and settling the same. In July, 1877, the Court, upon motion of parties interested in the estate, made another order setting aside the former order, and from the last order the executors appealed.
COUNSEL:
Geo. F. Baker, for Respondents, moved to dismiss the appeal upon the ground that the order was not appealable, citing Code of Civil Procedure, sec. 969; Blum v. Brownstone , 50 Cal. 293; Estate of Smith , 51 Cal. 563; Estate of Johnson v. Tyser , 45 Cal. 257.
Wm. Matthews and Wilson & Wilson, for Appellants.
By sec. 1714, Code of Civil Procedure, the provisions of the Code concerning new trials and appeals are made applicable to proceedings in the Probate Courts. In Riddle v. Baker , 13 Cal. 295, it was held that an order vacating a judgment was equivalent to an order granting a new trial, and was appealable. Such an order is also a special order made after judgment. (Bond v. Pacheco , 30 Cal. 530.) An order granting a new trial and " a special order made after judgment," areappealable under clause 3 of sec. 939, Code of Civil Procedure. This section is applicable to Probate Courts, as to all the Courts of the State. Each proceeding commenced in a Probate Court pending administration must, in the nature of things, be considered a separate suit, or in the nature of a distinct action. (See Beckett v. Selover , 7 Cal. 241.)
OPINION THE COURT
Appeal dismissed for the reason that the order is not an appealable order.