93 Cal. 653 | Cal. | 1892
This is an appeal upon the judgment roll from a decree foreclosing a mortgage executed by defendants.
It appears that the original plaintiff died while this case was pending here on a former appeal (86 Cal. 197), and that the present plaintiff was thereupon substituted as administrator of the estate of said deceased, upon the suggestion and motion of plaintiff’s attorney.
After the reversal of the judgment and the filing of the remittitur in the court below, plaintiff moved for and obtained leave to file.an amended complaint, in which, among other things, he alleges: “ That on or about the - day of April, 1890, Robert Campbell, the original plaintiff in said action, died testate in the county of Los Angeles, California, and that subsequently, to wit, on or about the twelfth day of June, 1890, said David F. Campbell was duly appointed and qualified as executor of the last will and testament of said deceased, and ever since has been, and now is, the duly acting and qualified executor cf the estate of-said deceased.”
The amended complaint was duly filed, and a copy thereof personally served on each of the defendants, but no copy was served on their attorney.
Defendants having failed to appear and answer or demur to the amended complaint within the time al
It is claimed, with some show of seriousness, that “the facts upon which the present plaintiff’s cause of action depends are the death of the original plaintiff, and his appointment as executor of the estate of said deceased, and substitution as such executor in place and stead of said deceased. These facts could not be set forth by amended complaint,” but should have been pleaded by supplemental complaint.
Section 385 of the Code of Civil Procedure provides, among other things, that “in case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest.” And the practice in this state is well settled, in such cases, for courts to allow the substitution to be made, upon suggestion of the death of a party, and on an ex parte motion showing the appointment and qualification of the executor or administrator of the estate of the deceased party.
The other provisions of this section, relating to substitution “in case of any other transfer of interest,” when set in motion by plaintiff, or the person to whom the transfer is made, or by defendant if for any reason he desires to avail himself of such transfer for any purpose, must be made by supplemental complaint or answer.
It is further claimed that the amended complaint is insufficient, because it fails to properly allege plaintiff’s appointment as executor.
If this action had been originally brought by plaintiff as executor, etc., there would be some force in the suggestion, for in that case the complaint should allege the death of the testator, “ his leaving a last will and testatment, the appointment therein of plaintiff as executor, the probate of the will, the issuance of letters testamentary thereon to plaintiff, and his qualification and entry upon the discharge of his duties as executor”; and while the allegation of representative capacity objected to is insufficient, it was not essential, but it serves
Nor is this presumption inconsistent with plaintiff’s substitution as administrator by order of this court, while the case was pending here on a former appeal, which we are satisfied was a clerical error. But admitting that it was not a clerical error, and that the substitution here was the only one made, the powers and duties of executors and administrators, under our statute in relation to actions of this character, are in all respects the same.
In either case he is permitted to continue the action as the representative or successor in interest of the deceased plaintiff, and whatever may be recovered therein are assets of the estate of which he is the legal representative, and the misnomer or misdescription of the plaintiff’s representative capacity is immaterial, for the-reason that the object was to continue the action in the name of the legal representative of the deceased; and as the powers and duties of executors and administrators are the same with respect to actions of this character, the mistake of the clerk (if it was a mistake) in confounding these representative titles was one which a person in his position would be liable to make, and one that could not, by any possibility, have operated to the injury of the defendant.
As these are the only questions necessary to be considered, it follows from the views which we have expressed that the judgment should be affirmed, and we so advise.
Foote, C., and Temple, C., concurred.
For the reasons given in the foregoing opinion, the judgment is affirmed.
The point urged in support of the petition for a rehearing in this case was not overlooked in deciding the appeal. If the fact that the amended complaint was served on the defendants, and not on their attorney, was in any degree prejudicial to them, they should have sought relief by motion in the superior court before appealing from the judgment. We will not reverse a judgment for a merely technical error, which could he corrected in the superior court, when no such application has been made.
Rehearing denied.
