85 P.2d 824 | Utah | 1938
Plaintiff seeks mandamus to compel the defendant to sign a decree showing that due and legal notice has been given to creditors to present their claims against the estate of plaintiff's decedent. Defendant demurred to the petition for the writ; hence the latter with its 1 exhibits constitutes an agreed statement of facts. These facts are that on March 21, 1936, plaintiff was appointed administratrix of the estate of Raymond V. Coddington, deceased. On April 20, 1936, she qualified as such. On March 28, 1937, to June 18, 1937, a notice to creditors of said estate was duly published in a newspaper. The publisher's *344 affidavit of publication was sworn to on June 26, 1937, and on February 21, 1938 (more than eight months after the date of last publication), the same was filed in the clerk's office of defendant court. After this latter date the administratrix made a motion that the court make its decree showing that due legal notice to creditors had been given. The request was denied, and plaintiff seeks to compel such action.
Utah Revised Statutes 1933, 102-9-1, provides that every administrator must immediately after his appointment cause a notice requiring creditors to present their claims to be published, the order for and terms of which notice are prescribed by the clerk of the court under Section 102-2-1, subdivision (6), Section 102-9-3 provides that:
"Within thirty days after the publication of the notice is completed a copy thereof, with the affidavit of due publication, must be filed, and the court must enter an order or decree showing that due notice to creditors has been given."
It appears that there was a delay of about one year after the petitioner's appointment before the first publication of notice to creditors appeared, and after its completion there was a further delay of eight months before the proof of publication was filed, — seven months after the latter was sworn to by the publisher.
Plaintiff contends that the statute as to time is directory merely and not mandatory, while defendant's position is that, owing to the undue delay, he was under no legal duty to sign the decree. We should not become ensnared by terms. Mandatory has the sense of "must", but whether the duty 2-4 is mandatory or directory, we do not think filing a copy of the published notice together with proof within the thirty days is a condition necessary to exist before the court may make its order that due and legal notice has been given. The purpose of the filing of the copy of the notice and proof is to inform a creditor that notice had been given or to inform the court that it has been properly published so that he could make the *345
decree, or if not filed a creditor might conclude that at least notice had not been completed at a time prior to thirty days before he inspected the record. This last reason is given inHawkins v. Superior Court,
It is said that the reasoning of the case of Reese v.District Court,
The demurrer is sustained. The alternative writ recalled with costs to defendant.
FOLLAND, C.J., and MOFFAT and LARSON, JJ., concur. *348