Mahoney v. Superior Court

California Supreme Court

Mahoney v. Superior Court

140 Cal. 513

CourtCalifornia Supreme Court

DecidedOctober 7, 1903

DocketS. F. No. 3643

StatusPublished

This text of 140 Cal. 513 (Mahoney v. Superior Court) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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Opinion

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.

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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.

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Bluebook (online)

140 Cal. 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoney-v-superior-court-cal-1903.