In re the Estate of Rose

14 P. 369, 72 Cal. 577, 1887 Cal. LEXIS 580

• Court: California Supreme Court
• Decided: June 24, 1887
• Docket: No. 12160
• Status: Published

Opinion

Searls, C. J.

This is a motion to dismiss an appeal upon the ground that it-.was prematurely taken.

It appears from the. affidavits, on file that on the 12th of March, 1887, .findings-of • fact and an order or decree were signed and filed with the clerk, settling the account of H. Hirshfield, the. administrator of the estate of Rose, deceased. Afterward, .and on the twenty-seventh day of April, 1887, the administrator perfected an appeal to this -court from such order or decree.

At the time of -taking such appeal, the decree appealed from .had not been entered in the minute-book of the Superior Court of Tulare County, where the «proceedings were had and where the cause was pending.

In probate-cases, it is provided by section 1704 of the Code of Civil Procedure that “ all orders and decrees of the court or judge must be .entered at .length in the minute-book of the .court.”

If an appeal is taken in such a case, it “ must be taken .within sixty days■ after the order, decree, or judgment is entered.”

The appeal in this case was premature. (People v. Center, 66 Cal. 570; McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43.)

The motion is granted and the appeal dismissed.

McKinstry, J., Thornton, J., Sharpstein, J., Temple, J., McFarland, J., and Paterson; J., concurred.