Mahoney v. Superior Court

California Supreme Court
Mahoney v. Superior Court, 140 Cal. 513 (Cal. 1903)
Beatty

Mahoney v. Superior Court

Opinion of the Court

BEATTY, C. J.

This is a petition for a writ of certiorari to review an order of the superior court dismissing a contest of a proved will, upon the ground that the necessary citation was not issued within a year after the decree admitting the will to probate. Among other grounds of demurrer to the petition, is the existence of a right to appeal, which, whenever it is available, excludes the right to proceed by certiorari. (Code Civ. Proc., sec. 1068.)

We think the demurrer must be sustained on this ground. The order which we are asked to review put an end to the contest, and was in effect an order refusing to revoke the probate of the will, which is one of the orders made appealable by the amendment of 1901 to section 963 of the Code of Civil Procedure. The petition is dismissed for the reason that the order in question can be reviewed on appeal, and that certiorari is therefore not the proper remedy.

Shaw, J., Angellotti, J., Van Dyke, J., McFarland, J., Henshaw, J., and Lorigan, J., concurred.

Reference

Full Case Name
ANN MAHONEY v. SUPERIOR COURT etc.
Status
Published
Syllabus
-Contest op Will—Appealable Order—Certiorari.—An order of the superior court dismissing the contest of a proved will, on' the ground that the necessary citation was not issued within a year after admitting the will to probate, is in effect an order refusing to admit the will to probate, which is made appealable by the amendment of 1901 to section 963 of the Code of Civil Procedure. Such order is not, therefore, reviewable upon certiorari.