Johnson v. Tyson

45 Cal. 257

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 3,600
• Status: Published

Opinion

By the Court:

It is clearly shown by the record that the executor had appeared from time to time in the proceedings had upon the petition of the widow to set apart certain property as a homestead for her. Notwithstanding such, his general' appearanee to the petition, the Probate Court subsequently and pending the proceedings, upon the motion of the executor (respondent here), set aside all the proceedings subsequent to the filing of the petition, because “ no citation was issued and served upon the executor.” Of course we would not hesitate, upon these facts, to reverse this action of the Court, were the order itself the subject of an appeal, but it is not. The proceedings upon the petition appear to be still pending before the Probate Court, and the order complained of therefore does not amount to an order, decree, or judgment, either “for or against setting apart property,” etc., for the widow. (Probate Act, Sec. 297.)

The appeal is dismissed. Remittitur to issue forthwith.