The Court held the order dismissing the petition to be appealable within the meaning of section 969, subdivision 7, and directed the argument to proceed upon the merits of the case.
Mr. Carr --The Court erred in dismissing the petition and refusing to order the payment of the claim. Section 1647 of the Code of Civil Procedure confers upon the Court the authority to make the order asked for. The claim having been properly allowed by the administrator and the Probate Judge, it could not be attacked in the Probate Court, or in any other Court, except on the ground of fraud, mistake or wrong, which must be distinctly alleged and proved. (Estate of Hidden , 23 Cal. 364; Estate of Schroeder , 46 Cal. 315; Thayer v. Clark, 48 Barb. 243; Pitner v. Flanagan, 17 Texas, 7; Pico v. de la Guerra , 18 Cal. 422.)
The specification of objections to the claim does not allege any ground for refusing payment of the claim.
Mr. Cobb --The petition was dismissed after hearing testimony, and the record does not bring up the testimony nor state even the purport of it. It may be that the testimony showed that the claim had been paid in full; and, that being so, the Court would have been right in dismissing the petition. I rely upon the point that the order having been based upon evidence which is not presented in the record, this Court will not review the proceedings of the Probate Court, but will indulge the presumption that the judgment is supported by the evidence.
JUDGES: Chief Justice Wallace, speaking for the Court.
OPINION
WALLACE, Judge
This is an appeal by the petitioner from an order dismissing his petition for the payment of a claim that had been allowed and approved. The claim so allowed had the force and effect of a judgment. The action of the Court in allowing the claim has not been questioned by appeal, but the respondent opposes the payment of the claim, not on the ground of fraud or mistake, but because--as the specification of objections alleges--the services of the petitioner were not worth the amount charged by him and allowed by the administrator (the respondent here) and by the Probate Judge. We are of the opinion that that is not a sufficient ground for refusing to order the payment of the claim. The absence of the testimony from the record is immaterial, for the reason that under the allegations in the pleadings it could not possibly aid the respondent. The objections to the payment of the claim, as set forth by the administrator in pleading, being insufficient in themselves, it cannot be intended, even in the absence of the evidence that the Court below found some other fact not relied upon in the pleading, but which if it had been pleaded, would have justified the judgment of that Court.
Order reversed and cause remanded.