ROBERT S. HOWARD et al., Petitioners, v. SUPERIOR COURT OF SAN MATEO COUNTY et al., Respondents, 25 Cal. 2d 784

GIBSON, C. J. The attorneys for the executors filed a petition asking for an allowance of $10,000 as ordinary fees and $15,000 as extraordinary fees, but the posted notice and the notice served on counsel for the husband of the testatrix merely referred to a petition for the allowance of $25,000 “on account of their compensation for services rendered,” without mentioning whether such compensation was for ordinary or extraordinary services. These notices were given pursuant to an order of court, prepared by the petitioning attorneys, which likewise did not differentiate between the two types of compensation.

There was no opposition at the hearing and the probate court granted the fees as prayed. About two months later, the husband filed a verified “petition” to vacate under

section 473 of the Code of Civil Procedure, claiming that when he and his counsel examined the notice served on them they mistakenly believed that the executors’ attorneys were seeking merely ordinary fees, that they took no action in reliance on that mistaken belief and that the petition to vacate was filed promptly upon discovering the true facts. With this verified pleading the husband filed his verified objections to the petition for allowance of fees.

The probate court issued an order to show cause why the prior order should not be set aside, and subsequently, after a continuance of the hearing, the prior order was vacated. The attorneys for the executors then sought a writ of certiorari on behalf of the executors, the estate, and themselves, to annul the vacating order on the ground that such order was in excess of the court’s jurisdiction because the petition to vacate did not show sufficient grounds of inadvertence, surprise, mistake or excusable neglect.

The extraordinary remedies of mandamus, prohibition and certiorari are permitted in some states as a substitute for a writ of error in reviewing interlocutory or intermediate orders and decrees where irreparable injury would result from requiring a party to wait and appeal from a subsequent final order or judgment. (See Crick, The Final Judgment Rule, 41 YaleL.J. 539, 553, 557.) However, in this state, the writ of certiorari will issue only when an inferior tribunal “has exceeded [its] jurisdiction . . . and there is no appeal, nor . . . any plain, speedy, and adequate remedy.’’ (Code Civ.

Proc., § 1068; Redlands High School Dist. v. Superior Court, 20 Cal.2d 348 [125 P.2d 490] ; Kupfer v. Brawner, 19 Cal.2d 562 [122 B.2d 268].) This writ cannot be used as a writ of error, whether or not an appeal is possible. (Cook v. Civil Service Com., 160 Cal. 589 [117 P. 663]; Estate of Paulsen, 179 Cal. 528 [178 P. 143] ; Estrin v. Superior Court, 14 Cal.2d 670 [96 P.2d 340]; Ivory v. Superior Court, 12 Cal.2d 455 [85 P.2d 894].) The order under

section 473 of the Code of Civil Procedure vacating the allowance of fees, having been made in probate, was not appealable (Prob. Code, § 1240; Lilienkamp v. Superior Court, 14 Cal.2d 293 [93 P.2d 1008]; Estate of Grussing, 15 Cal.App.2d 11 [59 P.2d 152]) but the matter will be reviewable upon an appeal from a subsequent order granting or denying attorneys’ fees. (Lilienkamp v. Superior Court, supra.) In Bank of America v.

Superior Court, 20 Cal.2d 697 [128 P.2d 357], it was held that an order permitting an amendment to the complaint was not reviewable on certiorari because (1) the court had jurisdiction to make the order, and (2) the order was reviewable on appeal from the final judgment.

In that case the petitioners had an adequate remedy by appeal from the final judgment, and we said that “Certiorari will not lie if the effect of the order sought to be annulled can be reviewed and nullified on an appeal from the final judgment, even though the order itself is not appeal-able.’’ Of course, the language must be read in relation to the particular facts there involved, and there may be situations in which an appeal from a subsequent order or from the final judgment may not be an adequate remedy, but the facts in this case are within the holding in the Bank of America ease.

The vacating order does not amount to a final determination but merely reopens the matter for further consideration to the end that there may be a proper decision on the merits after a full examination of the facts, and the opportunity for review on a subsequent appeal affords an adequate remedy. Hence petitioners are not entitled to have the order reviewed herein. Certiorari likewise will not issue unless there is a lack or an excess of jurisdiction; and in this case the probate court unquestionably had jurisdiction of the res and of the parties.

There is no question of the service of notice, either as to the original petition or as to the motion under

section 473, although it is claimed that the notice of the original petition was defective and misleading. The motion to vacate was made on the grounds that the order allowing fees was made without proper notice and that it was taken by reason of mistake, inadvertence, surprise and excusable neglect on the part of the husband and his counsel.

In the absence of a formal written order, it will be presumed that the probate court in granting the motion found (1) that the notice of application for an allowance to the executors’ attorneys of $25,000 “on account of their compensation for services rendered” was defective, or at least misleading ; (2) that the husband and his counsel were in fact ■misled by the notice and believed that it related solely to ordinary fees; (3) that such belief was the result of mistake, inadvertence, surprise or excusable neglect; and (4) that the husband was entitled to relief from his default.

If the showing made warranted such findings, the probate court had jurisdiction to grant relief under

section 473, and we cannot decide in this proceeding whether or not there was any error in so doing. The petitioners’ claims as to lack of a sufficient affidavit of merits, inadequacy of the showing of mistake, etc., and insufficiency of the proposed objections to the allowance of fees, do not affect the jurisdiction of the court to act on the petition, but merely indicate the possibility of error in the exercise of that jurisdiction.

The motion was made upon statutory grounds and, assuming that the trial court should have decided that the mistaken belief of the husband and his counsel was due to their negligent failure to ascertain the facts with reference thereto, the error can be reviewed only on appeal. The argument of petitioners that the court abused its discretion and therefore exceeded its jurisdiction is equivalent to saying that in every case in which a court errs in the exercise of discretion under

section 473 it is acting in excess of its jurisdiction, for there is no error unless the court abuses its discretion. This argument is obviously unsound. The petitioners, in claiming that the court acted in excess of its jurisdiction, rely on such cases as Lankton v. Superior Court, 5 Cal.2d 694 [55 P.2d 1170]; Treat v. Superior Court, 7 Cal.2d 636 [62 P.2d 147]; and Whitley v. Superior Court, 18 Cal.2d 75 [113 P.2d 449]. The decisions in these cases may be clearly distinguished (as pointed out in Shrimpton v.

Superior Court, 22 Cal.2d 562, 565 [139 P.2d 889]) on the ground that each one involved an order of the trial court which was not made in pursuance of any of the prescribed methods of procedure as defined by the Code of Civil Procedure. For instance, in the Lankton case the court’s proposed modification of its judgment was in excess of its jurisdiction where such action was not based on any ground specified in

section 473, but on the ground that a judicial error had been made, and where the time for a motion for a new trial had elapsed and the modification could not be made pursuant to

section 662. Similarly, in the Treat case the findings and judgment were vacated on the ground that there had been a failure to comply with the directory provision of

section 634 that a copy of the proposed findings and judgment be served on the opposing party. However, this was not a ground for such vacation, and there was no attempt to base the order on the provisions of sections 473 or 662. Hence it should be clear that the factual situation of these cases is entirely different from a case where the court is asked to act on proper grounds and does so act, and the claimed error is that the court abused its discretion in finding that there was a mistake or excusable neglect, etc., warranting relief under

section 473. In other words, if the court sets aside its final order on a ground not authorized or recognized by the statute, it may be acting in excess of its jurisdiction, but if it does so on a ground authorized by the statute, the possible insufficiency of the evidence to support its action does not go to its jurisdiction, but is a basis for review on appeal. So long as there is some showing in support of the trial court’s action, the quantum of proof cannot be considered or weighed on certiorari. Since it cannot be said that the probate court lacked jurisdiction under

section 473 to set aside the allowance of fees, and inasmuch as that order may be reviewed on a subsequent appeal it may not be annulled on certiorari. It appears that the respondent court, in vacating the order allowing fees, relied in part upon an asserted stipulation that such order might be set aside- and the matters of fees reexamined. The petitioning attorneys deny that any such stipulation was intended.

It is unnecessary for us to determine the effect of the statements of counsel understood by the court to. constitute such stipulation, since we have decided that the order may not be reviewed in this proceeding. The motion for the substitution of Neil S. McCarthy and Joseph J. Bullock as attorneys for Robert S. Howard and Lindsay S. Howard as executors is granted without prejudice to rights of the petitioning attorneys in connection with the presentation of their claims for fees. The proceeding in certiorari is dismissed. Shenk, J., Curtis, J., Traynor, J., and Schauer, J., concurred.

Edmonds, J., did not participate therein.