EDMONDS, J.
Petitioners are two of the numerous claimants to the estate of Michael F. O’Dea, deceased. (Estate of O’Dea, 15 Cal. (2d) 637, 638 [104 Pac. (2d) 368]; Marlow v. Superior Court, 17 Cal. (2d) 393 [110 Pac. (2d) 11].) In a proceeding to determine heirship, which is pending and undecided, a judgment of dismissal was entered against them. They did not appeal but some five months after its entry they moved under § 473 of the Code of Civil Procedure that the judgment be vacated. Their motion was denied and the order was held to be nonappealable. (Estate of O’Dea, supra.) They now seek a writ of mandate commanding the probate court, notwithstanding the judgment of dismissal, to hear and determine their claims to heirship.
It appears that after the judgment of dismissal was rendered, the petitioners attempted to file a second claim to heir-ship. This claim is in exactly the same terms as the one which was dismissed by the judgment. The clerk, acting under an order of court, refused to file it. In the present proceeding the petitioners charge that there is no statutory au[542]*542thority for a judgment of dismissal in an heirship proceeding, hence it is an act in excess of the jurisdiction of the court and does not bar their further participation in that proceeding. As a further ground for the issuance of the writ, the petitioners contend that the court must permit them to file the second claim to heirship and present evidence thereon.
The procedure for determining heirship is contained in chapter XVII of the Probate Code, which includes §§ 1080-1082, based upon former § 1664'of the Code of Civil Procedure. These sections provide that when the time to file claims against an estate has expired but the estate is not in a condition to be closed, any person claiming to be an heir may file a petition setting forth his claim. The clerk shall set the matter for hearing and any person may appear and file a written statement setting forth his interest in the estate. No other pleadings are necessary. At the time appointed the court shall hear the petition and any objection to it, and shall determine who are the heirs, specifying their interests. When this decree becomes final, it is conclusive upon the matters determined.
By another section of the Probate Code in a different chapter “All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions.” (§ 1230.) These “rules of practice” are more particularly specified in § 1233 which reads: ‘ ‘ Except as otherwise provided by this code, the provisions of part II of the Code of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this code with regard to trials, new trials, appeals, records on appeal, and all other matters of procedure.” One of the provisions of the Code of Civil Procedure authorizes a dismissal “by the court, when either party fails to appear on the trial and the other party appears and asks for the dismissal ...” (Code of Civil Procedure, § 581.)
The language of § 1233 is broad and all-inclusive. It not only refers to “trials” but also to “all other matters of procedure. ’ ’ Therefore a determination of the question concerning the authority of the court to dismiss a claim to heirship turns upon whether §§ 1080-1082 contain within themselves a complete and exclusive procedure for determining heirship, or whether they should be construed as being in pari materia with §§ 1230-1233, supra, thus making applicable the general [543]*543rules of practice, including the provision for a judgment of dismissal.
Former § 1664 of the Code of Civil Procedure, which was enacted in 1885, and upon which §§ 1080-1082 of the Probate Code are based, outlined a detailed procedure for the conduct of heirship hearings, including provision for notice, appearance, entry of defaults, limitation of time for filing pleadings, appeals, costs, and other matters. Upon enactment of the Probate Code in 1931, most of these detailed items of procedure were omitted from the new §§ 1080-1082. That fact, however, is not indicative of an intention to dispense with these procedural steps in hearings to determine heirship, but rather of an intention that essential matters of procedure not expressly covered by the language of §§ 1080-1082 should be governed by the rules of practice for civil actions contained in the Code of Civil Procedure, made applicable by §§ 1230-1233, supra. Other considerations compel that conclusion.
Prior to 1931, the court unquestionably had the right to enter judgments of nonsuit or dismissal in proceedings to determine heirship (Hitchcock v. Superior Court, 73 Cal. 295 [14 Pac. 872]; Estate of Kasson, 141 Cal. 33 [74 Pac. 436]; former § 1664, Code of Civil Procedure). The provisions of the new enactment clearly show an intention to state the applicable rules of procedure in general terms rather than by particular specification in order that they may conform, as nearly as is consistently possible, to those for civil actions.
No weight should be accorded the argument that the rules of civil practice should not govern an heirship hearing because such a proceeding is not adversary, or in the nature of a civil action, but is essentially a proceeding in rem to determine those entitled to inherit the assets of an estate. It is true that jurisdiction of the probate court is a jurisdiction in rem. The res is the decedent’s estate, and the object of the probate and administration proceedings is to secure distribution to the persons entitled to share in the estate. (Edlund v. Superior Court, 209 Cal. 690 [289 Pac. 841]; Lilienkamp v. Superior Court, 14 Cal. (2d) 293, 298 [93 Pac. (2d) 1008].) But certain probate proceedings, such as a will contest, are also commonly denominated as adversary proceedings and partake of the nature of a civil action, requiring a limited application in probate of the rules of civil practice. (Estate of Morrison, 125 Cal. App. 504, 507 [14 Pac. (2d) 102].)
[544]*544Such is a proceeding to determine heirship, which is in essence a proceeding in rem but also constitutes, to a certain extent, an adversary contest. First of all the claimant to heirship must take affirmative action to establish his own relationship to the decedent and his right, flowing from that relationship, to inherit the estate, the res. Second, he may then contest the claims of other alleged heirs in the same or a closer degree of relationship. When conflicting claims are involved the proceeding becomes an adversary one and partakes of the nature of a civil action. (Estate of Kasson, supra; Estate of Friedman, 173 Cal. 411 [160 Pac. 237].) This dual character was recognized in the Friedman ease, which was a proceeding to determine the heirship and succession to the estate of a decedent, where the court said:
“Each person filing a complaint or answer in the proceeding, and setting up title to the whole estate by a distinct line of kinship, is necessarily an actor for himself and against all other persons who also claim the entire estate. His claim is antagonistic to that of all the others, and the claim of each of the others is antagonistic to him. With respect to every other claimant so alleging an interest, the case stands precisely the same as if the contest was between him and that person alone. ‘His hand will be against every man, and every man’s hand against him’. . . .
Free access — add to your briefcase to read the full text and ask questions with AI
EDMONDS, J.
Petitioners are two of the numerous claimants to the estate of Michael F. O’Dea, deceased. (Estate of O’Dea, 15 Cal. (2d) 637, 638 [104 Pac. (2d) 368]; Marlow v. Superior Court, 17 Cal. (2d) 393 [110 Pac. (2d) 11].) In a proceeding to determine heirship, which is pending and undecided, a judgment of dismissal was entered against them. They did not appeal but some five months after its entry they moved under § 473 of the Code of Civil Procedure that the judgment be vacated. Their motion was denied and the order was held to be nonappealable. (Estate of O’Dea, supra.) They now seek a writ of mandate commanding the probate court, notwithstanding the judgment of dismissal, to hear and determine their claims to heirship.
It appears that after the judgment of dismissal was rendered, the petitioners attempted to file a second claim to heir-ship. This claim is in exactly the same terms as the one which was dismissed by the judgment. The clerk, acting under an order of court, refused to file it. In the present proceeding the petitioners charge that there is no statutory au[542]*542thority for a judgment of dismissal in an heirship proceeding, hence it is an act in excess of the jurisdiction of the court and does not bar their further participation in that proceeding. As a further ground for the issuance of the writ, the petitioners contend that the court must permit them to file the second claim to heirship and present evidence thereon.
The procedure for determining heirship is contained in chapter XVII of the Probate Code, which includes §§ 1080-1082, based upon former § 1664'of the Code of Civil Procedure. These sections provide that when the time to file claims against an estate has expired but the estate is not in a condition to be closed, any person claiming to be an heir may file a petition setting forth his claim. The clerk shall set the matter for hearing and any person may appear and file a written statement setting forth his interest in the estate. No other pleadings are necessary. At the time appointed the court shall hear the petition and any objection to it, and shall determine who are the heirs, specifying their interests. When this decree becomes final, it is conclusive upon the matters determined.
By another section of the Probate Code in a different chapter “All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions.” (§ 1230.) These “rules of practice” are more particularly specified in § 1233 which reads: ‘ ‘ Except as otherwise provided by this code, the provisions of part II of the Code of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this code with regard to trials, new trials, appeals, records on appeal, and all other matters of procedure.” One of the provisions of the Code of Civil Procedure authorizes a dismissal “by the court, when either party fails to appear on the trial and the other party appears and asks for the dismissal ...” (Code of Civil Procedure, § 581.)
The language of § 1233 is broad and all-inclusive. It not only refers to “trials” but also to “all other matters of procedure. ’ ’ Therefore a determination of the question concerning the authority of the court to dismiss a claim to heirship turns upon whether §§ 1080-1082 contain within themselves a complete and exclusive procedure for determining heirship, or whether they should be construed as being in pari materia with §§ 1230-1233, supra, thus making applicable the general [543]*543rules of practice, including the provision for a judgment of dismissal.
Former § 1664 of the Code of Civil Procedure, which was enacted in 1885, and upon which §§ 1080-1082 of the Probate Code are based, outlined a detailed procedure for the conduct of heirship hearings, including provision for notice, appearance, entry of defaults, limitation of time for filing pleadings, appeals, costs, and other matters. Upon enactment of the Probate Code in 1931, most of these detailed items of procedure were omitted from the new §§ 1080-1082. That fact, however, is not indicative of an intention to dispense with these procedural steps in hearings to determine heirship, but rather of an intention that essential matters of procedure not expressly covered by the language of §§ 1080-1082 should be governed by the rules of practice for civil actions contained in the Code of Civil Procedure, made applicable by §§ 1230-1233, supra. Other considerations compel that conclusion.
Prior to 1931, the court unquestionably had the right to enter judgments of nonsuit or dismissal in proceedings to determine heirship (Hitchcock v. Superior Court, 73 Cal. 295 [14 Pac. 872]; Estate of Kasson, 141 Cal. 33 [74 Pac. 436]; former § 1664, Code of Civil Procedure). The provisions of the new enactment clearly show an intention to state the applicable rules of procedure in general terms rather than by particular specification in order that they may conform, as nearly as is consistently possible, to those for civil actions.
No weight should be accorded the argument that the rules of civil practice should not govern an heirship hearing because such a proceeding is not adversary, or in the nature of a civil action, but is essentially a proceeding in rem to determine those entitled to inherit the assets of an estate. It is true that jurisdiction of the probate court is a jurisdiction in rem. The res is the decedent’s estate, and the object of the probate and administration proceedings is to secure distribution to the persons entitled to share in the estate. (Edlund v. Superior Court, 209 Cal. 690 [289 Pac. 841]; Lilienkamp v. Superior Court, 14 Cal. (2d) 293, 298 [93 Pac. (2d) 1008].) But certain probate proceedings, such as a will contest, are also commonly denominated as adversary proceedings and partake of the nature of a civil action, requiring a limited application in probate of the rules of civil practice. (Estate of Morrison, 125 Cal. App. 504, 507 [14 Pac. (2d) 102].)
[544]*544Such is a proceeding to determine heirship, which is in essence a proceeding in rem but also constitutes, to a certain extent, an adversary contest. First of all the claimant to heirship must take affirmative action to establish his own relationship to the decedent and his right, flowing from that relationship, to inherit the estate, the res. Second, he may then contest the claims of other alleged heirs in the same or a closer degree of relationship. When conflicting claims are involved the proceeding becomes an adversary one and partakes of the nature of a civil action. (Estate of Kasson, supra; Estate of Friedman, 173 Cal. 411 [160 Pac. 237].) This dual character was recognized in the Friedman ease, which was a proceeding to determine the heirship and succession to the estate of a decedent, where the court said:
“Each person filing a complaint or answer in the proceeding, and setting up title to the whole estate by a distinct line of kinship, is necessarily an actor for himself and against all other persons who also claim the entire estate. His claim is antagonistic to that of all the others, and the claim of each of the others is antagonistic to him. With respect to every other claimant so alleging an interest, the case stands precisely the same as if the contest was between him and that person alone. ‘His hand will be against every man, and every man’s hand against him’. . . . The case does not stand precisely in the same position as an ordinary case where the defeat of one necessarily results in a victory for the other. In cases of the kind here presented the defeat of one claimant merely eliminates him from the contest, leaving the others to fight it out to the finish, but none the less, each is an adverse party to the other and is entitled to attack the appeal of the other. ’ ’
Petitioners further contend that as § 581, subd. 3 of the Code of Civil Procedure only authorizes entry of a judgment of dismissal “when either party fails to appear on the trial, ’ ’ the judgment here entered was invalid because at the time of its entry the “trial” had not commenced. A construction of the word “trial” which would support that conclusion gives it much too limited a meaning. Generally speaking, a “trial” includes all rulings of a court in proceedings before it made in furtherance of the decisions made upon the issues in the case which form the basis of the judgment. (Stow v. Superior Court, 178 Cal. 140 [172 Pac. 598]; see [545]*545also Green v. Duvergey, 146 Cal. 379 [80 Pac. 234]; Goldtree v. Spreckels, 135 Cal. 666 [67 Pac. 1091].)
The petitioners take the position that a trial has not commenced until the jury has been impaneled and the introduction of evidence begun. Among other decisions upon which they rely is Superior Oil Co. v. Superior Court, 6 Cal. (2d) 113 [56 Pac. (2d) 950], in which it was held that the case had not been brought to trial within the meaning of § 583 of the Code of Civil Procedure by a hearing upon a preliminary injunction. But in the present proceeding the judgment of dismissal was rendered after the court had commenced to examine the great volume of evidence that was to be presented to the jury and to make rulings upon its admissibility. These determinations were decisions on questions of law and were made in furtherance of the trial upon the merits. The trial had, therefore, begun and the court was authorized to render a judgment of dismissal against petitioners for their failure to attend.
The next question is whether the trial court abused its discretion in denying petitioners ’ motion under § 473 of the Code of Civil Procedure to vacate the judgment. The undisputed facts show that from May 8th to July 24th, 1939, petitioners, duly represented by counsel, participated in preliminary proceedings in the heirship hearing. On the date last mentioned, while they were so represented in court, a motion previously made for an order dismissing the claims of all persons who had not appeared in person or through counsel was renewed. The court, in an effort to conduct the trial in an orderly manner, granted the motion, and further directed that no attorney or claimant absent himself from the trial without permission, or without providing a substitute, or stipulating to be bound by all that transpired in his absence.
The attorneys representing petitioners then gave notice in open court of their intention to withdraw and that petitioners would thereafter appear in the proceeding in propria personae. On July 25, 1939, a substitution in writing to that effect was filed. On the same day judgments of nonsuit or dismissal were entered against all claimants who were not present or represented by counsel and who failed to respond to the roll call, petitioners being among them. Petitioners did not appeal from the judgment of dismissal. Following [546]*546its entry, and until after December 26, 1939, the court was engaged almost continuously in reviewing depositions and documentary evidence which had been filed in the proceeding on behalf of the various claimants. On December 26th, petitioners appeared by new counsel and gave formal notice of their intention to move under § 473, supra, to vacate the dismissal. Such motion was subsequently made and denied. It was renewed on April 15, 1940, and again denied.
No facts are shown which would excuse petitioners’ failure to comply with the requirements of the court concerning attendance at the trial and no satisfactory explanation is given for their delay in waiting for five months before seeking to be relieved from default. There were in all more than 460 claimants to heirship, and the estate is of an approximate value of $5,000,000. During the period of petitioners’ nonappearance, the trial court ruled upon objections made by the different claimants to testimony contained in the depositions, which were read in open court, and to the documentary evidence which was offered. The purpose of these preliminary proceedings was to shorten and simplify the trial of the issues of fact which it was proposed to submit to a jury. To have permitted petitioners to re-enter the proceeding and demand a hearing de novo of all these preliminary matters which had been decided in their unexplained absence, would have been manifestly unfair to the other claimants. In refusing to vacate the judgment of dismissal the court exercised a wise discretion and its order must be upheld.
Concerning the second claim of heirship, the judgment rendered against the petitioners has become final and it amounts to a determination of their rights to the same extent and in the same manner as if there had been an adjudication upon the merits. (King v. Superior Court, 12 Cal. App. (2d) 501 [56 Pac. (2d) 268]; 9 Cal. Jur., p. 524, sec. 16.)
The alternative writ of mandate is discharged and the proceeding dismissed.
Gibson, C. J., Shenk, J., and Traynor, J., concurred.