Dunham v. Weisenberger

92 Cal. App. 2d 162 (1949)

Estate of HAZEL RYKER, Deceased. MAY F. DUNHAM, as Administratrix, etc., Appellant,
v.
PAUL R. WEISENBERGER, Respondent.

Civ. No. 13991.

California Court of Appeals. First Dist., Div. Two.

June 2, 1949.

Robert E. Hatch, Norman S. Stimmel and Emmet B. Hayes for Appellant.

A. J. Zirpoli for Respondent.

NOURSE, P. J.

[1] The appeal is from an order made in probate denying a motion made under section 473 of the Code of Civil Procedure to amend an order confirming a sale of real estate. The motion was based upon the ground that the portion of the order directing the administratrix to pay a commission on the sale to a real estate broker was inadvertently made because valuable services had not been rendered by him.

Section 1240 of the Probate Code permits an appeal from an order in probate directing a sale or confirming a sale of property of an estate. No provision is found for an appeal from an order denying an amendment to or the vacation of an order of confirmance. In Estate of O'Dea, 15 Cal. 2d 637 [104 P.2d 368], the Supreme Court dismissed an appeal from an order denying appellants' motion under section 473 to be relieved from their default for failure to appear. The court held that since the motion was not one mentioned in section 1240 of the Probate Code, an appeal would not lie. The rule was followed and other authorities were cited in Estate of Brady, 32 Cal. 2d 478 [196 P.2d 881].

Appeal dismissed.

Goodell, J., and Dooling, J., concurred.