193 P. 809 | Cal. Ct. App. | 1920
The plaintiff and defendant are executors of the last will and testament of Conrad Iser, deceased. The said Conrad Iser died on the nineteenth day of January, 1917. His will was admitted to probate and letters testamentary issued to the said Adam Keller and John Gerber on February 6, 1917. The estate exceeds in value the sum of $10,000, and the first publication of notice to creditors was made on February 7, 1917. Two claims against the estate, the latest of which was to all intents and purposes an amendment of the first, were presented by plaintiff, and neither was allowed nor rejected within the time allowed by law. A short time after the period prescribed for allowance or rejection of claims had expired this action was commenced. The claims were for "work, labor and services rendered by claimant in caring for and nursing Conrad Iser continuously during the whole period of time commencing October 20, 1913, and ending January 19, 1917, the date of the death of Conrad Iser, a period of 169 weeks," and other services rendered in caring for the business of deceased. The court did not allow anything for services rendered in caring for the business of the deceased, but rendered judgment in favor of plaintiff for the sum of $5,070 for services rendered by plaintiff in caring for and nursing deceased for the period above stated.
[1] It is claimed by the appellant that the claims were not presented or filed within the time prescribed by law. The essence of the argument on this contention is that a claim filed with a deputy county clerk in the courtroom of a department of the superior court is not filed with the county clerk. In other words, it is claimed that no claim is filed with the county clerk until it is presented in the main office of the county clerk.
It appears from the evidence that on September 29, 1917, Clinton L. Harber, one of the attorneys for plaintiff, handed to the deputy county clerk at his desk in the courtroom of Department No. 3, of the superior court of Sacramento County, the first claim, and requested him to file *518 the same, at which time he requested the deputy clerk when he handed the claim to the judge to ask the judge not to take any action on it until after he had an opportunity of talking with the judge. That he handed the amended claim to the said deputy county clerk at his desk in said courtroom on November 14, 1917, and requested him to file it, and also told him that when he presented it to the judge to call the judge's attention to the fact that he did not want him to take any action on it without first giving claimant an opportunity to be heard.
The presenting of these claims to the deputy county clerk in the manner as above stated was a filing of the claims. Section 1490 of the Code of Civil Procedure provides that claims must be filed "in the office of the clerk of the court from which the letters were issued." In our opinion each department of the superior court is necessarily a court, and the clerk of each department is the clerk of that court. There is nothing in sections 4178 and 4312 of the Political Code that militates against this conclusion. These sections defining the duties of the county clerk require that he have an office at the county seat and that in such office during the hours from 9 o'clock A. M. until 5 o'clock P. M. of each day in the year, except Sundays and holidays, there shall be present at least one person qualified and prepared to transact the business that may properly come into said office. But neither of said sections supports the contention of appellant that the main, central office, where the permanent records are kept, is the sole and exclusive office of the county clerk. In our opinion every courtroom in which a deputy county clerk is assigned under the law is as much a part of the county clerk's office as if the partitions were removed and it was in fact a part of one room.
The appellant cites the following California cases:Estate of Sbarboro,
In Estate of Sbarboro,
In Tregambo v. Comanche,
In Edwards v. Grand,
In Hoyt v. Stark,
In Rauer etc. Co. v. Standley,
[2] The taking of the claims by the attorney for plaintiff for presentation to the judge after their delivery to the deputy county clerk for filing did not constitute such a withdrawal of the claims as to destroy the effect of such previous presentation for filing. In the case of Wilkinson v.Elliott,
In the case at bar the claims were left with the clerk of the court, who had them in his possession until they were taken to the judge of the superior court.
[3] Complaint is made by appellant that the claims fall within the statute of frauds and that the writing received in evidence is not a sufficient memorandum within that statute. *522
It is true that it is alleged in the claims that the said Conrad Iser promised to pay the plaintiff for the services upon his death, but neither of the claims is based on this promise. The nonperformance of the contract is expressly alleged and the claims are founded on a quantum meruit. The case is one to establish a claim for the reasonable value of services.
Even conceding that the contract is within the statute of frauds and that the services were rendered under an invalid oral contract, respondent was still entitled to recover by reason of full performance on his part, as neither the law nor equity will permit the statute of frauds to be used as an instrument of, or a shield for, fraud.
In Arguello v. Edinger,
In Seymour v. Oelrichs,
[4] But the written memorandum above referred to is, in our opinion, a valid and sufficient written contract to pay the reasonable value of the services rendered by the plaintiff. It is an express written promise by Conrad Iser to pay Adam Keller for such services rendered in nursing him during his illness, which ended with his death, and no oral evidence is necessary to complete the contract. There being no provision for the measure of compensation, the law implies the promise to pay the reasonable value thereof.
This written memorandum, the court found, was signed by Conrad Iser on or about the seventh day of January, 1917, and among other things it provides as follows: "And besides I will pay to Mr. Adam Keller extra for his services for nursing during the time of my sickness." This is a sufficient acknowledgment of his indebtedness to plaintiff and sufficient to take plaintiff's claim out of the bar of the statute of frauds.
[5] Appellant contends that the testimony of Dr. W. A. Briggs and Dr. George A. Foster was privileged, and hence inadmissible, under section 1881, subdivision 4, of the Code of Civil Procedure, which provides that: "A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending a patient, which was necessary to enable him to prescribe or act for the patient."
We do not think that the testimony of these physicians was inadmissible under the said provision of the statute. Their testimony was simply as to the general character and value of the services rendered by the plaintiff as nurse and not as to any information acquired in attending the patient which was necessary to enable them to prescribe or act for the patient, and under section 1881 of the Code of Civil Procedure a physician is precluded from being examined as a witness only "as to information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient." (Estate of Black,
But conceding that this testimony was privileged under section 1881, subdivision 4, of the Code of Civil Procedure, *525 it would not furnish a sufficient ground for a reversal of the judgment, as it was harmless for the reason that other witnesses testified substantially to the same facts, and under section 4 1/2 of article VI of the constitution, "No judgment shall be set aside or new trial granted, in any case, on the ground . . . of the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
In view of the foregoing we deem it unnecessary to pass upon the other questions argued in the briefs.
The judgment is affirmed.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 6, 1920.
All the Justices concurred.