In re the Estate of Sbarboro

This appeal is from certain orders and a judgment entered in a proceeding for revocation of the probate of the last will and testament of G. Sbarboro, deceased.

Proceedings for the revocation of the probate of a will must be commenced in the court in which the will was proved, within one year after the probate. (§ 1327, Code Civ. Proc.) If the validity of the will or its probate be not contested within that time, the validity and probate become final and conclusive upon all parties interested in the estate, except infants and persons of unsound mind. (§§ 1333, 1908, Code Civ. Proc.) • Proceedings for contesting the probate of a will are a suit in the nature of an action by parties interested in the estate against the administrator, with the will annexed, or the executor of the *7will, the legatees, devisees, and heirs of the estate, and they are commenced by filing a petition in the court in which the will was proved. A petition is filed by delivering it to be filed to the officer of the court who is entitled to receive it for that purpose, and to the custody of it after it has been filed. The clerk of the court below was the only person entitled to the custody of the petition. As custodian of the papers of a cause, he was, therefore, the only person to whom the petition could have been presented for filing, and when presented it was his duty to receive and indorse it filed. As matter of fact the petition in the case was delivered to the clerk of the court for filing about nine o’clock A. M. of the 3d day of December, 1879; but the decree of the court admitting the will to probate had been entered on the 2d day of December, 1878, and the “year” within which the probate could be contested had run at midnight of December 2, 1879; therefore the petition was not filed in time, and the validity of the will and its probate became final and conclusive upon the petitioners —there being no legal disabilities. However, the clerk indorsed the petition as follows: “Filed by order of court Dec. 2, 1879.” But the indorsement was made on the 4th day of December, 1879, under the following order made by the court on the same day: “ It is by this court ordered that the clerk of this court mark the said petition filed as of December 2, 1879, and that he make and enter the said order as of the same day.” That order was made upon proof to the satisfaction of the court that between the hours of seven and eight o’clock P. M. of December 2,1879, the petition, before it was filed or presented to the clerk for filing, had been presented to the judge of the court at his private residence, for an order for the issuance of a citation upon it, and for the purpose of examining it, so as to determine whether the petitioners were entitled to the order, the judge retained the petition in his possession until the morning of the 3d day of December, 1879, when he took it to the office of the clerk of the court, and about nine o’clock A. M. on that day delivered it with his order for the issuance of a citation thereon, to one of the deputy clerks of the court, in the clerk’s office, and verbally directed him to file the same as of the 2d day of December, 1879; but the clerk did not, at the time of receiving the petition from the judge, file *8it, because the attorneys for the administrator with the will annexed, being present, objected; and on the 4th day of December, 1879, the court heard the objection and overruled it, and made the order requiring the clerk to indorse the petition filed as of the 2d day of December, 1879, which was accordingly done. The court afterwards refused to set aside its order, and denied a motion made to correct the indorsement of the filing by the clerk so as to show the true date of the filing, but upon the trial found the facts as to the presentation and filing of the petition upon which its order was made.

The ruling and order of the court were erroneous. As the petition had not been, in fact, filed in the court within the “year,” it was too late to file it at all; and the court could not legally, after the expiration of the time, by order, relieve the petitioners from the legal consequences of their own loches or delay. Time was of the essence of the proceedings commenced by the petitioners. The provisions of the law directing the proceedings to be had and the time within which they might be commenced were, in that regard, imperative, not directory, for the law declared the effect of not commencing them in time— it made the thing which the proceedings were intended to assail conclusive and unassailable; and the court in which the proceedings were begun had no authority by order or otherwise to direct that to be done, which had not, in fact, been done, or to adjudge that which the law pronounced conclusive to be invalid and void.

Presenting an unfiled petition to the judge of a court for the purpose of obtaining from him an order for a citation upon it, is not filing it in court, nor the equivalent of filing it. It is no part of the duty of a judge to receive a petition in a cause for filing, or to file it, or to make an order for its filing, or for issuing a citation upon it, unless some law expressly requires of him the performance of such a duty. There was no law which required of the judge of the court in this case performance of any one of those acts. The duty of filing the petition, and issuing citation upon it, when filed, was cast by law upon the clerk of the court. (§ 1328, Code Civ. Proc.) Being purely ministerial acts, they had to be done within the time prescribed bylaw; andas they were not done by the proper officer, the *9rights of parties which had attached and become fixed by reason of their non-performance could not be disturbed. It was, therefore, error for the court by its order to direct the clerk to indorse on the petition that it had been filed on a day when it was not, in fact, filed nor delivered to him for filing. The order to that effect should have been set aside and the petition itself dismissed. Judgment and orders reversed and cause remanded.

McKinstry, J., and Boss, J., concurred.

Hearing in Bank denied.