Opinion
88 Cal. 302 at 313. Rehearing Denied.
Original Opinion of March 18, 1891, Reported at 88 Cal. 302.
OPINION
THE COURT 313 A petition for a rehearing having been filed, the following opinion was rendered thereon on the 3d of April, 1891:
A rehearing is asked in this case, upon the ground that the court in deciding that the order denying a new trial is an appealable order disregarded its former decisions upon the same point.
In Estate of Wiard , 83 Cal. 619, the court used the following language: "Subdivision 3 of section 963, Code of Civil Procedure, enumerates all the cases in which an appeal may be taken to this court from the superior court in probate proceedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them." In this case, after the entry of a decree of distribution, the contestant gave notice of her intention to move the court "to vacate and set aside the decree of distribution, and for a new trial in the matter of said petition for distribution." The motion, when brought on for hearing, was denied, and an appeal was taken from that order, but the record brought here did not contain any statement of the case or bill of exceptions to enable this court to pass upon that portion of the order denying the motion for a new trial, and the appeal was dismissed. In support of what is said above in dismissing the appeal, the court cited Estate of Calahan , 60 Cal. 232, and Estate of Lutz , 67 Cal. 457. In Estate of Calahan, an order had been made in 1875, purporting to settle the final account of the executor, and discharge him from his trust. In 1880, upon a petition therefor, the superior court made an order vacating the order made in 1875, and an appeal therefrom was dismissed by this court upon the ground that such order was not appealable. In Estate of Lutz, an order settling the final account of the executor and distributing the estate was made in 1881, and a petition filed in 1884 to vacate that order was denied by the superior court. An appeal from this order was dismissed by this court, upon the ground that it was not an appealable order. In each of the foregoing cases the court was simply called upon to determine whether an order vacating or refusing to vacate a decree of distribution is an appealable order, and its language must be construed in connection with the matter which it decided. Taken literally, the language of the court in each of those cases would imply that an appeal does not lie from an order made in probate proceedings granting or refusing a new trial, but as such construction is in direct conflict with the expressed language of the statute, it must be disregarded.
Prior to 1880, section 969 of the Code of Civil Procedure provided that "an appeal may be taken to the supreme court from a judgment or order of the probate court:. .. . 8. Granting or overruling a motion for a new trial."
In 1880 the legislature in order to adapt the provisions of the code to the constitution, which had given to the superior court the jurisdiction previously exercised by the district and probate courts, repealed section 969, and added subdivision 3 to section 963 of the Code of Civil Procedure, in which is contained the provisions of section 969, excepting subdivision 8. The provision in subdivision 2 of section 963 of the Code of Civil Procedure, which authorizes an appeal to be taken to the supreme court from a superior court, "from an order granting or refusing a new trial," embraces all such orders, whether made in probate proceedings or in civil actions. In all cases in which the superior court, when sitting as a court of probate, is authorized to entertain a motion for a new trial, an appeal will lie from its order thereon. Section 1714, of the Code of Civil Procedure provides: "The provisions of part 2 of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title." Section 656 of the Code of Civil Procedure defines a new trial to be "a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees." And section 588 of the Code of Civil Procedure declares the manner in which issues of fact arise upon the pleadings.
It would be impracticable to enumerate the cases in which a motion for a new trial is appropriate in probate proceedings, but it may be stated generally that whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence offered thereon, an issue of fact arises which, after its decision, may be re-examined by the court upon a motion for a new trial. Under this rule, a motion for a new trial was permissible in the present case. The respondents filed a written opposition to the appointment of the appellant as executrix, setting forth therein certain facts, which they alleged rendered her incompetent to receive the appointment. To this she filed a written answer, denying the facts which were alleged as rendering her incompetent, and upon the issues thus presented an extended trial was had before the court, in which many witnesses were called, the weight and credibility of whose testimony the court was called upon to determine. This presented issues of fact, which the court after deciding was authorized to re-examine upon a motion for a new trial, and, as we have above stated, its order upon such motion is appealable. Appeals from orders made upon motions for new trial in probate matters were entertained by this court in Estate of Learned , 70 Cal. 140; Estate of Briswalter , 72 Cal. 107; and Estate of Doyle , 73 Cal. 564.