Nason v. Superior Court

*450 CONREY, P. J. Certiorari. By this proceeding petitioner seeks to have annulled an order vacating an order discharging Mabel A. Nason as administratrix of the estate of Cornelius Walker, deceased. As appears from the petition, after a contest over heirship between Edwin N. Walker and E. Earle Walker (hereafter referred to for convenience as the Walker twins), and Mabel A. Nason, which contest was decided in favor of Mrs. Nason, the court settled the final account of the administratrix, and rendered a decree of distribution, awarding all of the property of the estate to Mrs. Nason. This decree was entered on the fifteenth day of May, 1916. On May 25th, Mrs. Nason filed a receipt made by her as distributee to herself as administratrix, for all the property distributed, and thereupon she applied for and was granted an order of discharge as administratrix of the estate. ¡ On the eighth day of June, 1916, the Walker twins applied to Judge Wilbur in open court by motion for an order vacating the order that had been made discharging Mrs. Nason as administratrix. Notice that said motion would be made was served upon Mrs. Nason, the grounds of the motion being stated in said notice as follows: “That said administratrix was not and is not entitled as yet to final discharge, and that the condition of the estate is such that it requires an administratrix. ’ ’ \ No supporting affidavit was served or filed, nor at the time said motion was presented was any testimony introduced; the notice stated that the motion would be made “upon the minutes of the court.” Judge Wilbur never ruled on the motion. On March 27, 1918, pursuant to notice given, the Walker twins made a motion before Judge Rives to have the motion to vacate order of discharge restored to calendar for hearing and determination. This motion was granted by Judge Rives, and the motion to vacate the order of discharge was given consideration by him and granted. The order granting the motion describes the proceedings taken to restore to calen-dar the motion to vacate, and recites further that the motion was restored to calendar and was heard and argued by the attorneys for the interested parties, and that the court took the matter under submission and ordered affidavits filed, and that affidavits of Ruben P. Schmidt, George M. Barker, and A. M. Case were filed in response to said order. Said affi *451 davits dealt solely with the question whether or not Judge Wilbur had ruled upon said motion presented on June 8,1916. The formal order vacating order of discharge contained a number of “findings,” three of them dealing with the question of whether or not the motion to vacate was before the court and undetermined. The fourth finding was as follows: “That the condition of said estate on said 25th day of May, 1916, and ever since has been and now is in such a condition that it requires an administrator. ’ ’ This “finding” responded to the ground urged by the Walker twins in their motion. The fifth and last fact found is outside of the issues involved in the motion, and" is as follows: “That said discharge of said administratrix on said 25th day of May, 1916, was made inadvertently and ex parte.” The “minutes of the court”—taking that phrase to mean the court files and records of administration—showed that the estate had been disposed of by a final decree of distribution which included a settlement of the final account of the administratrix; and that the administratrix had made delivery of the property of the estate in accordance with the decree. On that state of facts the court had made its order discharging the administratrix. This was in accordance with law and was in accordance with the regular and ordinary practice of the superior court in the conduct of its business in the administration of estates. Section 1697 of the Code of Civil Procedure provides that when an estate has been fully administered, and it is shown by the administrator that he has performed all of the acts lawfully required of him, “the court must make a judgment or decree discharging him from all liability to be incurred thereafter.” It is true that at the time when the discharge was granted, the time within which an appeal from the decree of distribution might be taken had not yet expired. But there was nothing in the record showing that an appeal had been taken, or that any stay of proceedings under the decree of distribution had been obtained. Under those circumstances an administrator who delivers the property to the distributees is acting in the performance of his duty. That duty having been performed, he is not concerned with the fact that an appeal may thereafter be taken. In the absence of a present showing in the record of facts indicating that an administrator is necessary to represent the estate in some further proceedings connected therewith, he is *452 then entitled to his discharge. It follows that in the matter of the Walker estate, the “minutes of the court” were entirely wanting in any facts from which the court could derive authority to set aside the decree of discharge on the grounds stated in the notice of motion, to wit, that the administratrix was not as yet entitled to discharge, and that the condition of the estate was such that it required an administratrix. The modes in which a decision may be reviewed are prescribed by statute, and as a general rule the courts are not at liberty to substitute other modes in their places. From a decree discharging an administrator there is no appeal. (Estate of Smith, 98 Cal. 636, [33 Pac. 744]; Code Civ. Proc., sec. 963, subd. 3.) The motion to set aside the decree of discharge was not made for relief under the provisions of section 473 of the Code of Civil Procedure, and the order may not be affirmed as one authorized thereby. This brings us to the principal contention upon which respondent relies, which is that, as stated iii the fifth “finding,” the decree of discharge was inadvertently made. Where an order has been irregularly and improvidently made, that fact takes the case out of the general rule above stated. For example: If an order granting, or an order refusing, a new trial, has been improvidently made before the motion has ■been regularly submitted, it would be within the power of the court, and would be its duty, to set aside the order. This is based upon the fact that in such ease the order was not made in the regular exercise of the jurisdiction of the court. (Odd Fellows’ Savings Bank v. Deuprey, 66 Cal. 168, [4 Pac. 1173].) But, as stated by Mr. Justice Sloss in Robson v. Superior Court, 171 Cal. 588, 597, [154 Pac. 8, 11]: “This does not mean that an order may be vacated because the court concludes, after making it, that it erred in matter of law or fact. ’ ’ “Such a state of things, being of rare occurrence, is not presumed, but must be affirmatively shown. The objection that the court has acted in an unauthorized mode goes to the power of the court, and hence its action may be reviewed on certiorari.” (Carpenter v. Superior Court, 75 Cal. 596, [19 Pac. 174].) In the ease at bar, the fact that the decree of discharge was inadvertently made was not presented as one of the grounds of the motion to set aside that decree. No fact appeared in the record from which inadvertence of the court may be inferred. *453 The order itself, now under review, while it states that the decree of discharge was made inadvertently and ex parte, does not indicate any particular in which the court had acted improvidently or inadvertently. Under such circumstances we cannot, from the mere assertion contained in the order, indulge in a presumption that the judge knew of some inadvertence which would justify the order. This would have been true if the judge who acted last had been the same judge who made the decree of discharge. It is even more emphatically true, when the claimed inadvertence was that of another judge. No help for respondent’s case can be obtained from section 937 of the Code of Civil Procedure, which authorizes a judge to vacate “an order made out of court, without notice to the adverse party.” A decree of final discharge of an administrator is not “an order made out of court.” The order is annulled. James, J., and Myers, J., pro tem., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 24, 1919. All the Justices, except Wilbur, J., who was absent, concurred.