I concur in the judgment. The code provides no limitation whatever in regard to the proceedings for the contest of a will after probate, except that the contest must be inaugurated within one year. Like all other proceedings in court, it is subject always to the power and the duty of the court to dis*450miss the contest if not prosecuted with due diligence. The contest here in question was commenced within the year and has been diligently prosecuted. A judgment was once entered which was vacated on motion for a new trial, and when the case was about to be called for retrial a motion to dismiss was made by the petitioner on the ground that the citation had not been served upon it. It turns out that the citation was served upon an employee of the petitioner who was apparently in charge of its asylum, but who, it is conceded, was not the person upon whom the citation should have been served.
The motion to dismiss was denied and a day was fixed for the hearing, which would give the contestant an opportunity to cite the petitioner, and a new citation was ordered.
It is contended that the order is void solely because the citation would be issued more than one year after the contest was commenced. It is claimed that it is jurisdictional, and that it makes no difference whether the matter has been prosecuted diligently or not. It is not contended that there is any such express limitation in the statute, but it is worked out upon the theory that section 1713 enacts: “Except as otherwise provided in this title, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” “This title” contains the entire procedure in probate matters; and part two the procedure in civil cases.
But what provision is there in part two in its nature applicable to this proceeding? Section 1327 provides that a contest shall be inaugurated by filing a petition. Section 1328, that upon the filing of the petition a citation must be issued requiring certain parties to appear upon a day named to show cause, etc. I find only two sections in part two in which any allusion is made to a right to issue a summons after the lapse of a year. Section 406 provides that the clerk must indorse on the complaint the date of its filing, “ and at any time within *451one year thereafter the plaintiff may have a summons issued.’' How could this be read into, or even stand with, section 1328, which, as was said in Bacigalupo v. Superior Court, 108 Cal. 92, requires the citation to issue forthwith upon filing the petition? The two provisions cannot exist together as applying to the same thing. It would be absurd to say that a person filing a petition for a contest may have a citation issued at any time within one year thereafter. The other section in which the time is mentioned is section 408, which provides that an alias summons shall not issue after the expiration of one year. This is equally inapplicable. There is no alias citation like an alias summons. The citation notifies the parties to appear at a time mentioned to show cause. If the court has the power to set the hearing, the citation may, of course, issue.
No one would contend that the provisions in regard to summons would apply generally to the various citations authorized in probate proceedings. It may be issued to require the performance of an act, and sometimes disobedience to it may be enforced by arrest and' imprisonment (Code Civ. Proc., secs. 1398, 1402, 1403, 1459, 1461, 1623, 1625); and where personal notice is required, and no other method is provided, it must be by citation.
But I think the statute shows on its face that no provision in regard to summons applies to citations. Everything in regard to citations is provided for in title XI. Section 1707 states what it must contain; section 1708 provides for its issuance; section 1709, that it shall be served in the same manner as a summons. This would be unnecessary if the provisions as to the summons applied, and on that supposition no operation can be given this section. Unlike a summons, the length of the notice may be prescribed by the court. Otherwis e it is five days. (Code Civ. Proc., sec. 1711.) As a rule, its functions are very unlike those of a summons. It is simply a notice, which may be molded to suit the occasion, and not a process which *452a party may sue out or not, and which, having sued out, he can serve when he pleases, provided it be done within three years.
In the Bacigalupo case it is correctly said that the provision in regard to citation cannot be used for delay. Of course not, for it must be issued to notify the party interested of a day of hearing already appointed by the court. It was therefore unnecessary to say anything about the time within which it can be issued. A summons, however, need not be issued at all unless the plaintiff wishes it, and then at any time within the year, and can be served at any time within three years thereafter. These can hardly be said to be provisions to prevent delay, and, as applied to the probate court$ would be ridiculous. A proceeding in that court is expected to move continuously and quickly to an end. If applicable to proceedings in the probate court, their effect would be to authorize delay, not to prevent it.
It is not expressly ruled in Bacigalupo v. Superior Court, supra, that the provisions above referred to in regard to the issuance of summons do apply to the proceeding for the contest of a will. It is said, “ giving section 1328 the widest latitude of construction possible, the power to issue a citation would, beyond all question, cease one year after the petition for revocation was filed.” This is apparently a construction of section 1328, and evidently refers to the previous remark that the statute requires citations to be immediately issued. That is, where a statute requires an act to be done at once, it surely must be done within the year. The party contesting cannot file his petition and then wait a year before asking for a hearing and ordering citation. This is a declaration of a rule of due diligence, not an assertion of a plain statutory limitation.
In this case no such state of things existed. A citation was issued at once, and the trial of the issues proceeded with due diligence. There has been no delay, and I am unable to discover by what means the court *453has lost jurisdiction. It is a proceeding in rem, and not inter partes. The court already had jurisdiction of the res, and could have proceeded with the trial of the contest without further notice, had the statute so provided. The contest could have been treated as an incident in the administration which was already pending. The office of the citation, then, was not like that of a summons, to give the court jurisdiction. It was an extra protection provided by the statute, and if the court still had jurisdiction of the proceeding its power to issue the citation cannot be doubted. It is not doubted that the service of the citation upon some of the parties gave jurisdiction as to them. Had the defect been discovered on the return day, it will not be disputed that the court might have continued the hearing to another day, to allow the completion of service. If this course had been kept up for a year, and service was still found incomplete, although all possible diligence had been used, I can see no rational ground for a claim that the court had thereby lost jurisdiction. It would require an express limitation to work such a result. Of course, all presumptions are against a construction which could have that effect.
I concur in the judgment for these reasons, which I understand accord with those expressed by Mr. Justice McFarland. I have not been able to persuade myself that section 389 has any application to this case.
Henshaw, J., concurred.
Hearing in Bank denied.