Fisher

17 P. 640, 75 Cal. 523, 1888 Cal. LEXIS 576

• Court: California Supreme Court
• Decided: April 19, 1888
• Docket: Nos. 11732, 11869
• Status: Published

Opinion

Hayne, C.

The first appeal is from a decree of partial distribution. It was taken sixty-two days after the entry of the decree. This was too late. (Code Civ. Proc., sec. 1715; Estate of Burns, 54 Cal. 223; Estate of Harland, 64 Cal. 379; Estate of Burton, 64 Cal. 428.) The argument as to the construction and constitutionality of the statute does not require refutation. The fact that the appeal was too late goes to the jurisdiction, and hence, it is unimportant whether the motion to dismiss has lapsed or not.

The second appeal is from an order refusing to change the records so as to show that the decree above mentioned was, in fact, entered at a later date than it shows on its face. We shall assume, without expressing any opinion on the point, that this order is appealable. In our view, however, the affidavit of the clerk is directly in conflict with that of the attorney for the appellant; and we cannot say that the court below came to a wrong conclusion as to the facts.

We, therefore, advise that the appeal from the decree of partial distribution be dismissed, and that the order refusing to change the record be affirmed.

Foote, C., and Belches, 0. 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the appeal from the decree of partial distribution is dismissed, and the order refusing to change the record is affirmed.

Hearing in Bank denied in No. 11732.