Cahill

This is a proceeding in mandamus to compel the superior court and Frank J. Murasky, as judge thereof, to hear and consider a motion of the petitioners duly presented to said court, to modify, and in part vacate, a previous order of the court in the matter of the estate of Patrick H. Cahill, deceased,- setting apart a homestead to the widow of the deceased out of the property of the estate.

The motion for the modification was made and presented within six months after the order setting apart the homestead When the motion was presented to the superior court the widow appeared thereto and objected to the hearing. The objections were,—1. That the court had no jurisdiction to vacate the former order; and 2. That the facts stated as the grounds of the motion did not justify a modification or vacation of the order.

The ground last stated furnished no reason for refusing to hear and consider the motion. It was addressed to the merits, and could only be considered after the court had, upon the consideration of the first objection, decided that it had jurisdiction to entertain the motion and make the order applied for. Both objections were taken up'together and argued and submitted…

I dissent. In the first place, if what respondent did could be construed as a refusal to act for want of jurisdiction, it does not appear that respondent had jurisdiction. In Levy v. Superior Court, 139 Cal. 590 , and cases there cited, it was merely held that section 473 of the Code of Civil Procedure, which provides for relieving a party from the judgment or order taken against him “through his mistake, inadvertence, surprise, or excusable neglect,” applies to certain probate orders, and that only under said section can orders not appealable be reached. But in the case at bar the petition to set aside was not based on section 473, but merely on certain alleged errors in the order sought to be vacated. In the second place, the respondent acted in the matter, and ordered that “the motion to vacate the decree hereinbefore made setting apart the homestead is denied”; and, in my opinion, the reasons upon which the action was based are immaterial. Having acted, respondent cannot be compelled by mandamus to act differently.