1. The motion of Appellant in the Court below was to dismiss the petition of Respondents, because the citation was served upon her one, instead of four, days, before the hearing.
If the service of the citation had been insufficient, that might be cause to set aside the service thereof, and require the petitioners to bring the heirs before the Court by a proper mode. But this is not cause sufficient to dismiss the petition. (Practice Act, Sec. 515.)
2. The service of the citation upon the 30th of October, 1858, was sufficient. (See Statute concerning the Estates of Deceased Persons, from Title 2, Proof of Wills, Secs. 5, 13, 14, 16, 17, 20, 24; Title 13, Miscellaneous Provisions of the Act concerning Estates, Secs. 288, 290.)
By the service of the citation the Appellant was brought into Court, and her objection, that the service was too near the return day, and that therefore no jurisdiction was acquired, is frivolous. The Court would give the party sufficient time to prepare for trial, in the exercise of a reasonable discretion, which in this case was granted.
We did not act under Sec. 290 of the chapter entitled " Miscellaneous Provisions."
The 290th Section is in conflict with the 13th and 14th Sections. We followed the 13th and 14th, and ignored the 290th Section.
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. concurring.
OPINION
COPE, Judge
This was a proceeding in the Probate Court of Los Angeles County, 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, 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.
Judgment affirmed.