In Re Estate of Lee

Opinion — Shenk

SHENK, J.

This is a motion to dismiss two appeals. The first is an appeal from a • judgment entered on the eleventh day of December, 1924, wherein it was adjudged that the contest of the will of said deceased by and on behalf of Josephine Marie Lee Wrynn was not well founded and ordering distribution of the said estate to the legatee named in said will. The motion is based on the alleged fact that no record on appeal has been prepared and that proceedings for the preparation of such record were terminated by the trial court on February 27, 1925. In the cause entitled Wrynn v. Superior Court et al., ante, p. 591 [241 Pac. 849], it was determined that the superior court and the judge thereof, respondents in said proceeding, were not justified in refusing to certify the reporter’s transcript on appeal and ordering a peremptory writ of mandate to compel him to do so. The proceedings for the preparation of said record on appeal must be deemed to be pending before the superior court. There is, therefore, no proper basis for the *801 dismissal of the appeal from said judgment and the said motion is denied.

The second appeal sought to be dismissed is an appeal from the order made on the twenty-seventh day of February, 1925, terminating the proceedings' for the preparation of said record on appeal. In the case of Wrynn v. Superior Court et al., supra, it was decided that said order was not an appealable order. On the authority of that ease the motion to dismiss the appeal from the order of February 27, 1925, is granted and said appeal is dismissed.

Richards, J., Seawell, J., Waste, J., Myers, C. J., Lawlor, J., and Lennon, J., concurred.