In Re Estate of McCarty , 169 Cal. 708 ( 1915 )

This is in form an appeal by one P.L. Wilson from an order denying his motion to set aside an order of sale in the estate of Anna E. McCarty, deceased. The only connection of appellant with said estate is that of purchaser of the real property thereof, sold and confirmed to him by the probate court under and by virtue of the order of sale and subsequent proceedings which he attacked in his motion. On February 8, 1913, the court made an order authorizing the executor of the estate to sell the real property, and on December 6, 1913, an order was made confirming the sale of certain of the lands of the estate to the appellant herein. On May 2, 1914, appellant served and filed notice of motion to vacate and set aside the order of February 8, 1913, and all subsequent proceedings pertaining to the sale of the property, on the ground that the court was without jurisdiction to make the order and to entertain the other proceedings involved. On May 9, 1914, the motion was denied after argument. It will thus be seen that no appeal from the order authorizing the sale of the property of the estate or from the order confirming the sale is here involved, but that many months elapsed subsequent to such orders before appellant sought relief by his motion.

Respondent insists that the order attacked is not appealable. If any authority for such an appeal exists, it must be found in subdivision 3 of section 963 of the Code of Civil Procedure.(Estate of Calahan, 60 Cal. 233; In re Seymour, 15 Cal.App. 290, [114 P. 1023].) That subdivision provides that an appeal may be taken from a judgment or order "against or in favor of directing the partition, sale or conveyance of real property."

In Estate of Smith, 51 Cal. 565, it was held that under section 969 of the Code of Civil Procedure (which was the same as the third subdivision of the present section 963), an order refusing to set aside an order of sale previously made is not appealable.

In Estate of Martin, 56 Cal. 208, it was held that an order directing an executor to proceed with a sale previously ordered is not appealable, and in Lutz v. Christy, 67 Cal. 457, [8 P. 39], the court ruled that orders refusing respectively to set aside an order of distribution and an order settling a final account were not appealable. Without further citation it may be said that the decisions have rather strictly followed the letter of the statute.

But appellant cites with apparent confidence the recent case ofEstate of West, 162 Cal. 352, [122 P. 953], in which it was held that an order setting aside an order previously made confirming the sale of land of an estate of a deceased person was appealable because it was in legal effect an order against directing the sale of real property. It does not follow, however, that an order refusing to set aside an order of sale is appealable. The basic principle underlying the decision in the matter of the Estate of West was that the order set aside by the court below gave to appellant rights which, if properly conferred, were absolute. It followed logically that an order disturbing those rights — and particularly the right to a consummation of the sale — was an order against directing a conveyance. But the order which appellant here seeks to have reviewed on appeal is neither in favor of nor against the making of a conveyance. The order which was made, denying Mr. Wilson's petition, was one which neither added to nor took any force from the orders previously entered. By the order of sale certain rights were created in favor of the purchaser on the one hand and the estate on the other, if the order was not erroneously made. If error existed any interested party who felt aggrieved had a right to an appeal from that order. But an unsuccessful attack upon such an order by motion to set it aside does not create a new right of appeal involving the very questions which might have been presented on an appeal from the order of sale itself or the order of confirmation. By such an order no rights are granted or taken; no obligations are imposed or removed; and no new directions for or against the sale or conveyance are given. The order refusing to set aside the orders theretofore made, therefore, is not appealable.

It follows that the order must be and it is hereby affirmed.

Henshaw, J., and Lorigan, J., concurred.

Hearing in Bank denied.