Opinion
Appeal from an order of the Superior Court of the City and County of San Francisco refusing to dismiss a proceeding to determine heirship. J. V. Coffey, Judge.
COUNSEL:
S. W. & E. B. Holladay, for Appellants H. T. Blythe et al .
W. H. H. Hart, and Garber, Boalt & Bishop, for Respondent.
JUDGES: In Bank. Henshaw, J. McFarland, J., Van Fleet, J., Garoutte, J., and Temple, J., concurred.
OPINION
HENSHAW, Judge
Appellant, Henry T. Blythe, and others moved the court sitting in the matter of said estate to dismiss the above-entitled proceeding, upon the ground that the party entitled to judgment therein had neglected to demand and have the same entered for more than six months. (Code Civ. Proc., sec. 581, subd. 6.) His motion being denied this appeal is taken.
The facts are that in the proceeding had under section 1664 of the Code of Civil Procedure, in the matter of said estate, the order or decree of the court determining heirship and rights to property was, upon October 22, 1890, spread at length upon the probate [42 P. 642] minute-book as required by section 1704 of the Code of Civil Procedure.
Appellant prosecuted his appeal from this decree, basing it, as appears from the transcript therein filed, upon the entry thereof made in the minute-book. That appeal having been decided adversely to his contention, he makes this motion to dismiss all proceedings taken under said section 1664 for the neglect of respondent, but lately discovered, in failing to have the decree or judgment from which he appealed entered in the proper book.
To support the contention the claim is made that the proceeding under section 1664 of the Code of Civil Procedure is a civil action; that the final determination of a civil action is a judgment; that a judgment must be entered in a judgment-book (Code Civ. Proc., sec. 668); that this judgment admittedly was not so entered; and that the penalty for the omission should be a dismissal. But the proceeding under section 1664 of the Code of Civil Procedure, while partaking in form of the nature of a civil action, is not a civil action, and the final determination, while having features in common with a judgment, is not a judgment in a civil action. It is unnecessary to discuss the nature and scope of this proceeding, for that has already been elaborately done in this estate in Blythe v. Ayres , 102 Cal. 254, 258, as well as in the case of In re Burton , 93 Cal. 463, where it is said: "The proceeding permitted by section 1664 of the Code of Civil Procedure is a special proceeding (Smith v. Westerfield , 88 Cal. 374), and is embraced within the scope of 'matter in probate' as clearly as is the proceeding for the sale of real property to pay debts of an estate."
Moreover, the very contention raised upon this appeal has twice before been presented in motions made by parties to the original proceeding, and both times decided against the contention. In Blythe v. Ayres, No. 15479, the record showed the entry of the decree appealed from in the probate minute-book, and a motion was made to recall the remittitur as having been improvidently issued upon the ground that the record disclosed that no entry of the judgment appealed from had been made, the point being that the entry should have been in the judgment-book. And in Blythe v. Ayres, No. 15788, the motion was made after suggestion of a diminution of the record, for that it did not disclose an entry of the judgment, and the entry shown to have been made in the minute-book was not sufficient. In denying these motions, since consent could not confer jurisdiction, it was of necessity held that the final decree, when spread at length upon the minute book of the court in probate, was properly entered.
The order appealed from is affirmed.