Estate of W. M. RYER, Deceased. CHRISTOPHER B. RYER, Appellant, v. ELISABETH INA RYER, Executrix, etc., et al., Respondents, 110 Cal. 556

Harrison, J. Motion to dismiss the appeal. The last will and testament of Washington M. Ryer, deceased, was admitted to probate and letters testamentary issued thereon July 13, 1892, and after the expiration of four months therefrom the appellant herein, claiming to be an heir of the deceased, presented his petition to the superior court for the share of the estate to which he claimed to be entitled. To this petition the executors and certain of the heirs and legatees of the deceased filed their answers, and the issues thus presented were tried by the court, and judgment rendered denying the petition.

The petitioner then moved for a new trial, which was denied, and he has appealed from the order denying this motion.

A motion is now made by the executors, and also by certain corporations claiming to be beneficiaries under the will of the deceased, to dismiss the appeal, upon the grounds that the notice of intention to move for a new trial, as well as the appellant’s draft of his statement of the case, were not served upon these corporations; that the transcript on appeal, which was filed herein, was not properly authenticated ■by reason of not having been certified on behalf of these corporations; that the notice of appeal was not served upon either of these corporations, and that, as they are adverse parties to the appellant, this court has no jurisdiction of the appeal unless they have been properly brought before it. 1.

A failure to serve the adverse party with notice of the intention to move for a new trial, or with the draft of a statement of the case, may be a reason for denying the motion for a new trial, or for refusing to settle the statement, and may, upon an appeal, if such service was necessary, be a ground for affirming or reversing the order appealed from; but it does not deprive this court of jurisdiction to hear the appeal, or constitute a reason for its dismissal upon the ground that the court has not acquired jurisdiction to hear it. (Barnhart v.

Fulkerth, 92 Cal. 155.) Matters occurring prior to the judgment or order appealed from cannot be considered on a motion to dismiss an appeal upon the ground that the appeal has not been perfected. (Centerville etc. Ditch Co. v. Bachtold, 109 Cal. 111.) 2. Prior to the hearing of this motion the appellant had filed with the clerk of this court a transcript properly authenticated by the clerk of the superior court, and has thus removed this ground of the motion. (Estate of Medbury, 48 Cal. 83; Woodside v. Hewel, 107 Cal. 141; Warren v. Hopkins, ante, p. 506.) 3.

Upon an appeal from an order denying a new trial, the parties to the motion in the court below are only proper parties to the appeal (Watson v. Sutro, 77 Cal. 609); and the appellant'is not required to give notice of appeal to others than those to whom the original motion was directed. The “ adverse party ” upon whom a notice of appeal is to be served is the party who appears by the record to be adverse (Harper v. Hildreth, 99 Cal. 265); and the record which is to be considered for that purpose is the record of the proceedings in which the appeal is taken.

The rule that the notice of appeal must be served upon all parties that would be affected by a reversal of the order and judgment appealed from, is to be construed with the other rule that only the record can he examined for the purpose of determining who are such adverse parties. The fact that the judgment or order may be used as evidence in some collateral action or proceeding, or that its reversal may have a remote or consequential effect to the prejudice of one who is not a party thereto, does not entitle such person to be made a party to the appeal.

If it is necessary to resort to evidence extrinsic to the record upon the appeal in order to show that the reversal will have such effect, the appeal will not be dismissed. The record to be used on an appeal from an order granting or refusing a new trial consists of the judgment-roll and the bill of exceptions or statement used on the hearing of the motion, with a copy of the order appealed from. (Code Civ.

Proc., sec. 661.) There is no “judgment-roll,” strictly speaking, in proceedings in probate, but, whenever proceedings in probate are so akin to a civil action as to necessitate the “papers” which are declared by

section 670 to constitute the judgment-roll in a civil action, they may be held to constitute the judgment-roll referred to in

section 661. In Bauquier’s Appeal, 88 Cal. 302, it was held that a motion for a new trial is appropriate in proceedings in probate, "whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence offered thereon,” and that an appeal will lie from the order made on the motion for a new trial.

The proceeding instituted in the superior court by the appellant herein, is in the nature of a collateral inquiry, or episode, interjected into the proceedings for the administration of the estate, in which there are pleadings, process, trial, findings, and a judgment, thus presenting all the elements of a civil action instituted in an independent suit for the purpose of determining the right of the appellant to a share of the estate, and, in matters of procedure upon an appeal, should receive the same consideration as upon an appeal in a civil action.

The proceedings were taken by virtue of sections 1658 to 1660 of the Code of Civil Procedure.

Section 1659 provides: “Notice of the application must be given to the executor or administrator personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.” The manner in which notice of the settlement of the account of an executor or administrator is to be given is prescribed in

section 1633, which requires the clerk to “ appoint a day for the settlement thereof, and thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account.” In the present case personal notice of the application was served upon the executors, and the clerk caused to be posted for five days in three public places, in the city and county of San Francisco, a notice “to all persons interested in the estate” to appear and show cause why the -said petition should not be granted.

The court thus acquired jurisdiction over all parties interested in the 'estate, to hear the application.

Section 1660 provides: '“The executor or administrator, or any person inter"ested in the estate, may appear at the time named and resist the application”; and, accordingly, the executors and certain others claiming to be interested in the estate resisted the application and filed answers thereto. The only parties to the record are those who appeared and resisted the application, and they are the only parties who will be affected by a reversal of the order appealed from.

The corporations herein referred to, who have not been served with the notice of appeal, did not resist the application, or in any way place themselves upon the record, or make themselves parties to the proceeding; and it is only by resorting to evidence outside of the record that it can be determined whether they are interested in the proceeding, or whether they will be in any way affected if a different result shall be reached upon a new trial.

The only issues of fact to be tried in the court below were those presented by the parties who had filed answers to the application, and, as, upon the original trial of those issues, only the parties thereto could claim the right to be heard, so only the parties to those issues are necessary parties to the hearing of an appeal from the order of the court refusing to re-examine the issues. The motions are denied. Garoutte, J., and Van Fleet, J., concurred.