Messer v. Superior Court , 23 Cal. App. 2d 743 ( 1937 )

BARNARD, P. J.

The facts which are material here are identical, or similar in all respects, with and to those involved in Fisher v. Superior Court, this day decided (ante, p. 528 [73 Pac. (2d) 892]). The petitioner here raises the additional point that the order consolidating the civil action with the probate proceeding was unauthorized and not founded on law. If we are correct in the conclusion announced in the other case, that a transfer of the civil action to the probate jurisdiction of the same court after the statutory time for starting a contest had expired would confer no jurisdiction to proceed with the matter, it is unnecessary to consider whether or not the consolidation, through which the transfer was sought to be accomplished, was particularly authorized by law. For the reasons given in the case referred to and on the authority thereof the petitioner herein is entitled to a writ.

The peremptory writ will issue as prayed for.

Marks, J., and Jennings, J., concurred.