Abila v. Padilla

Cope, J. delivered the opinion of the Court—Baldwin, J. concurring. This was a proceeding in the Probate Court of Los AngelesCounty, upon a petition praying for the probate of a will, and the issuance of letters testamentary. The petition was presented to the Probate Judge on the 15th of October, 1858, and' on the same day he issued' a citation to the heirs of the deceased, [106] citing them to appear on the 1st of November, 1858—the day designated for the hearing of the petition, and show cause why the prayer of the petition should not be granted. On the day appointed, certain of the heirs appeared in Court, and, through their counsel, moved to dismiss the application and proceedings of the petitioners, on the ground of objections to the service of the citation. The Court overruled the motion, and the parties thereupon answered to the merits of the petition. It is unnecessary for us to decide the question raised on the argument, whether these parties, in answering the petition, waived any of their rights under their preliminary motion to dismiss. That motion, as made, was properly overruled, for, however well grounded the objections to the service of the citation may have been, they could only affect the service itself, and did not invalidate any other portion of the proceedings. The answer gave the Court jurisdiction of the parties, and it is perfectly immaterial whether a citation ever issued. J udgment affirmed.