In re Estate of Kennedy

94 Cal. 22 | Cal. | 1892

Garoutte, J.

Thomas E. Curran, as administrator of the estate of Thomas Cushing, deceased, recovered a judgment in the sum of $2,642.25 principal, and $128 costs, against the executor and executrix of the estate of Philip Kennedy, deceased, to be paid in the due course of administration. Thereafter the probate court ordered the judgment and costs to be paid from the assets of the estate, and denied appellant’s motion to allow him interest upon the amount of the judgment from the date of the rejection of his claim by the executor and executrix to the date of the rendition of the judgment, and also denied his application for interest upon the amount of his judgment for costs. It is from the order of the court in these regards that this appeal is prosecuted.

It would seem, under the authority of Pico v. Stevens, 18 Cal. 376, that upon the recovery of a judgment against an estate upon a rejected claim, the creditor is entitled to recover interest from the date of such rejection. In this case it is not entirely clear from the record that the amount of the judgment recovered did not include such interest, but conceding such to be the fact, still the probate court had no authority to order any amount paid not included in the judgment. A certified transcript of the docket of the judgment forms the claim which is to be paid, and furnishes the evidence upon which the court acts in ordering its payment. Conceding appellant was entitled to recover interest from the date of the rejection of his claim, and the amount of such interest was not included in the judgment rendered, still such judgment is a bar to its recovery. If he failed to ask for such interest in his complaint, or if he asked for it and his prayer was denied by the court, in either case the judgment is a bar. In the court where the probate proceedings are pending, the question as to the amount to which appellant is entitled is res adjudícala by the judgment, and authorities are not necessary to be cited upon the proposition.

We think appellant is entitled to legal interest upon the amount of his judgment for costs. (Linck v. City of Litchfield, 31 Ill. App. 104.)

Let the cause be remanded, with directions to the lower court to allow appellant legal interest upon the amount of his cost-bill, and in other respects let the order be affirmed, appellant to pay the costs of this appeal.

Paterson, J., and Harrison, J., concurred.