Kramer v. Superior Court

TRAYNOR, J.

I concur in the conclusion that certiorari does not lie to review the propriety of the order denying the motion to set aside the decree of distribution. A motion to set aside a judgment under section 473 is addressed to the sound discretion of the trial court and “it need hardly be added that on certiorari we do not review matters within the discretion of the lower court.” (Estate of Kay, 30 Cal.2d 215, 226 [181 P.2d 1]; Howard v. Superior Court, 25 Cal.2d 784, 789 [154 P.2d 849]; Spanach v. Superior Court, 4 Cal.2d 447, 450 [50 P.2d444].)

It is contended, however, that the decree of distribution must be set aside regardless of the adequacy of petitioners’ showing of mistake, inadvertence, or surprise, for the reason that the probate court had no jurisdiction to enter such a decree. Thus, petitioners do not attack merely the order denying their motion under section 473; they invoke the writ of certiorari to support a collateral attack upon the decree of distribution. Certiorari will not lie for that purpose, for the probate court had jurisdiction to enter the decree and petitioners had a remedy by appeal.

The decree of distribution erroneously excluded petitioners from obtaining the real property under the will of decedent. The decree was appealable, however, and petitioners could have secured its reversal had they taken a timely appeal. (Estate of Knutzen, 31 Cal.2d 573, 577 [191 P.2d 747]; Estate of Bevilacqua, 31 Cal.2d 580, 582 [191 P.2d 752].) Certiorari will not lie when a remedy by appeal has been lost by the failure of the aggrieved party to avail himself of the remedy within the time permitted. (Phelan v. Superior Court, 35 Cal.2d 363, 370 [217 P.2d 951].)

Moreover, certiorari will not lie to annul a decree of a court of competent jurisdiction for errors of fact or law in the entry of that decree. If the trial court has jurisdiction to determine a particular issue, it is not deprived of jurisdiction by an erroneous determination. The error must be asserted on appeal and not by petition for certiorari. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287 [109 P.2d 942, 132 A.L.R. 715]; Brock v. Superior Court, 29 Cal.2d 629, 637 [177 P.2d 273, 170 A.L.R. 521]; Estate of Kay, 30 Cal.2d 215, 219, 220 [181 P.2d 1].) In the present case, the probate court had jurisdiction with respect to its decree of distribution to determine the persons entitled to decedent’s property under the will and the laws of this state. Its decree was erroneous because of its failure to take judicial notice of the 1923 treaty between Germany and the United States, which created the reciprocal rights of inheritance required by Probate Code, section 259. Failure to take judicial notice is error that may be asserted on appeal, but it is not jurisdictional. Certiorari is not a substitute for appeal. (Howard v. Superior Court, 25 Cal.2d 784, 787 [154 P.2d 849].) It will not lie “where the only excess of power complained of is the entering of an order unsupported by evidence ’ ’ or based on an error of law. (Estate of Kay, 30 Cal.2d 215, 219 [181 P.2d 1]; Aielleira v. District Court of Appeal, supra; Howard v. Superior Court, supra, 789; Brock v. Superior Court, supra.)

The result of the decree of distribution is that petitioners are deprived of a share in the estate of decedent to which they were clearly entitled. The decree has become final, however, and is res judicata. Petitioners in effect contend that the doctrine of res judicata must be disregarded because of what they consider to be inequities arising out of the erroneous decree of distribution. Such a departure from res judicata throws into question the finality of any judgment and thus is bound to cause infinitely more injustice in the long run than it can conceivably avert in this case. I therefore concur in the affirmance of the order.