116 Cal. 355 | Cal. | 1897
Lead Opinion
The decedent in his lifetime executed his promissory note to the Hibernia Savings and Loan Society, payable February 10, 1887, together with a mortgage upon certain real estate to secure its payment.
Section 353 of the Code of Civil Procedure provides: “If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuance of letters testamentary or of administration.” This provision is identical with that contained in section 24 of the limitation act of 1850 (Stats. 1850, p. 346), which was construed in Smith v. Hall, 19 Cal. 85. In that case Cook made his promissory note, and died before its maturity. Letters of administration were not issued upon his estate until more than four years had elapsed after the maturity of the note, and subsequently a claim thereon was presented to the administrator and
The order is affirmed.
Van Fleet, J., concurred.
Concurrence Opinion
concur in the judgment, and place my concurrence upon the proposition decided in Smith v. Hall, supra, that “the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued.”
In making that decision the court cited Danglada v. De la Guerra, supra, to sustain the proposition. That case, however, does not sustain it, and I know of no express provision of law that does. But section 1500 of the Code of Civil Procedure forbids the commencement of any action upon a claim against a decedent
I have examined the cases cited by appellant, but they do not appear to support his contention. Hibernia Savings & Loan Society v. Herbert, 53 Cal. 375, is not at all in point. Tynan v. Walker, 35 Cal. 643, 95 Am. Dec. 152, was the converse of this case, in which it was held that the representatives of an intestate could not keep alive a right of action indefinitely by neglecting to take out administration. The reasoning of Judge Sanderson (pp. 643, 644) does seem to support the contention of the appellant, but the case was different and the point decided was different. The reason for the exception engrafted upon the statute in Smith v. Hall, supra, does not exist when the right of action is one in favor of the decedent.
In Hibernia Savings & Loan Society v. Conlin, 67 Cal. 178, the suit was to foreclose a mortgage of the decedent given to secure another’s debt. There was no personal liability of the decedent, no right in any event to a deficiency judgment, and no necessity to present the claim before action. Here a presentation was necessary in view of the personal liability of the decedent and the right of plaintiff to a deficiency judgment.