Estate of McCarthy

Annotate this Case
[Civ. No. 2049. Fourth Appellate District. November 8, 1937.]

In the Matter of the Estate of CHARLES F. McCARTHY, Deceased. KATE A. SCHWERIN et al., Respondents, v. MAYZELLIA ANN McCARTHY et al., Appellants.


W. S. Staley, Lewis R. Kirby and George A. Mallette for Appellants.

Stearns, Luce, Forward & Swing, Henry E. Barbour and William A. Backlund for Respondents.


Marks, J.

This is an appeal in the same case as our Civil No. 2056, Estate of McCarthy, Deceased, this day filed [23 Cal. App. 2d 396] (ante, p. 389 [73 PaCal.2d 910]). Many facts pertinent to this appeal are set forth in that opinion and will not be repeated here.

The notice of appeal specifies the following orders from which the appeal is taken: (1) Order entered June 16, 1936, denying appellants a continuance; (2) order denying alleged lost or destroyed will admission to probate and dismissing the petition for its probate; (3) order made and entered August 12, 1936, denying motion of appellants for relief under section 473 of the Code of Civil Procedure and refusing to vacate the order of June 16, 1936.

[1] An order denying a continuance is not appealable. (Sec. 1240, Probate Code; Estate of Olmstead, 216 Cal. 585 [15 PaCal.2d 495].) It may be considered in the appeal from the final order made in the matter in which the continuance was denied.

There is nothing in the bill of exceptions in this appeal pertaining to the order of August 12, 1936, denying relief under section 473 of the Code of Civil Procedure and refusing to vacate the order of June 16, 1936. That matter is covered in the third appeal taken in this cause. To preserve our right to consider the question in that appeal we will dismiss this portion of the appeal without prejudice.

On May 14, 1936, Francis C. McCarthy, through L. B. Leep and William Schultz, his attorneys, filed his verified petition to probate an alleged lost or destroyed holographic will of his father, Charles Francis McCarthy, deceased. The purported will bears date of December 27, 1934. A copy of this will is attached to the petition for its probate. The copy does not bear the signatures of any witnesses.

On the request of attorneys for petitioner the hearing of the petition was set for June 12, 1936. Charlotte M. Morrow and Kate A. Schwerin filed their contest to the probate of the will. Mayzellia Ann McCarthy filed no pleading, though she took an active part at the hearing as a proponent of the probate of the will.

On June 12, 1936, Francis C. McCarthy and Mayzellia Ann McCarthy appeared without counsel, Miss Leep and Mr. Schultz having previously withdrawn. Their notice of withdrawal in this proceeding is dated May 18, 1936. It bears a note that it was served on Francis C. McCarthy on May 19th. It was filed May 21st. [23 Cal. App. 2d 397]

[2] The application for continuance was made orally. It was not supported by affidavits or in any other manner. It was made on the sole ground that appellants were not represented by counsel. The name of any purported witness was not disclosed nor did they disclose any of the evidence they expected to produce.

It is clear that appellants presented no legal grounds for a continuance. (Secs. 1230, 1233, 1205, Probate Code; sec. 595, Code Civ. Proc.; Flynn v. Fink, 60 Cal. App. 670 [213 P. 716]; Berger v. Mantle, 18 Cal. App. 2d 245 [63 PaCal.2d 335].) The granting of a continuance is a matter within the sound discretion of the trial judge and where his action in denying a continuance is not unreasonable or arbitrary it will not be disturbed on appeal. (5 Cal.Jur. 968, sec. 5, and cases cited; 4 Ten-Year Supp. 32, sec. 5.) As appellants showed no legal grounds for a continuance there was no breach of discretion in denying their motion.

[3] The trial court gave appellants every opportunity to present any evidence they had in support of the petition to probate the alleged lost or destroyed will. This they refused to do. As there was no evidence supporting this purported will the order denying it probate and dismissing the petition must be affirmed.

The attempted appeal from the order denying a continuance is dismissed.

The appeal from the order of August 12, 1936, denying appellants relief under section 473 of the Code of Civil Procedure and refusing to vacate the order of June 16, 1936, is dismissed without prejudice to permit us to consider that matter in our Civil No. 2050, which presents the record of those proceedings.

The order appealed from is affirmed. Appellants will pay the costs of this appeal.

Barnard, P. J., and Jennings, J., concurred.