109 P. 158 | Cal. Ct. App. | 1910
This is an original proceeding brought in this court to obtain a writ, prohibiting the superior court of Santa Cruz county and the judge thereof from proceeding to hear or grant a motion made by the administrator of the estate of Margaret McLaughlin, deceased, for an order setting aside the allowance and approval of a claim of plaintiff against said estate theretofore made by the judge of said court.
An alternative writ was issued, and the defendant made return thereto both by demurrer and answer.
From the record before us it appears that the plaintiff, on the twenty-fifth day of June, 1907, presented to Frank McLaughlin, the then administrator of the estate of said Margaret McLaughlin, deceased, his claim for the sum of $1955.49 upon a promissory note, executed by said Frank McLaughlin and indorsed by said Margaret McLaughlin; that said claim was approved by said Frank McLaughlin as such administrator on said day, and thereafter on the same day the claim was approved and allowed by the judge of said court and duly filed. Thereafter said Frank McLaughlin having died without completing the administration of said estate, Samuel N. Rucker was appointed administrator of said estate, and thereafter, to wit, on the ninth day of December, 1909, said Rucker, as such administrator, filed and presented to the court a "full report and account of the administration of the estate of Margaret McLaughlin, deceased, from the commencement thereof to the first day of October, 1909"; that thereafter, on the twentieth day of December, 1909, after due notice given, the said account was duly "settled, approved *220 and allowed." This order has not been attacked by appeal or otherwise; at least the record before us discloses no such attack; neither has it been suggested in the oral argument or otherwise that an attack has as yet been made upon the order settling and approving said account.
On the second day of March, 1910, said Rucker, as such administrator, gave notice of a motion for an order of the court setting aside the allowance made by the judge of said court June 25, 1907, of plaintiff's claim. It is the jurisdiction of the court to entertain and grant such motion that is attacked by this proceeding.
Defendant suggests that if the court should grant the motion plaintiff would have a plain, speedy and adequate remedy by appeal under section 963, subdivision 3, Code of Civil Procedure, but a reading of said section discloses that no appeal is given thereby from an order vacating the allowance of a claim against an estate. We have been cited to no other provision of the law giving plaintiff any remedy against an order setting aside the allowance of a claim against an estate, and we know of none.
Therefore if defendant is proceeding without jurisdiction in the matter in controversy, plaintiff is entitled to the writ as prayed for.
Plaintiff claims that in no event may the administrator by motion made more than six months after the allowance of a claim, procure the setting aside of such allowance; and that in the case at bar the allowance of plaintiff's claim has been placed beyond attack by anyone by the order settling and approving the administrator's account, in which it is claimed this claim was exhibited as an allowed claim.
In reply to the first proposition defendants citeBarker's Estate,
Cone v. Crum decides that the administrator may maintain an action in equity, brought within a short time after the allowance of the claim, where the allowance was made by mistake and through inadvertence. *221
However, it is not necessary for us to pass upon the question as to whether or not the administrator may under any circumstances take action to set aside the allowance of a claim against the estate, for we think that by the allowance of the account presented by the administrator December 9, 1909, the claim of plaintiff passed into the category of claims, "passed upon on the settlement of a former account" (Code Civ. Proc., sec. 1636), and was thereby conclusively established against all persons interested in the estate, in the absence of any appeal from such order or attack thereon under section
In all material respects the facts of this case are like those in Estate of McDougald,
In the report containing the account presented by the administrator to the court December 9, 1909, three allowed claims are set forth. One of the three is the claim of plaintiff. As to this claim it is there said, "That after the said time for presentation of claims against said estate had fully expired, the claim of H. I. Kowalsky was presented for $1955.47, claimed to be due on the promissory note of said Frank McLaughlin, such note purporting to have been indorsed by said Margaret McLaughlin by her writing her name across the back thereof at the time of its execution, to wit, November 30th, 1904; that said last-mentioned note was made payable one year after date, to wit, on November 30th, 1905; and said claim therefor states that when said note became due, viz., November 30th, 1905, the same was presented by claimant to and payment demanded of the maker, said Frank McLaughlin, who failed to pay the same; that said claimant thereupon, after presentation as aforesaid, and upon said 30th day of November, 1905, gave notice in writing to said Margaret McLaughlin of the said demand and the failure of said Frank McLaughlin to pay said note; that said Margaret McLaughlin's death had occurred prior to the said maturity of said note, to wit, on said 16th day of November, 1905; that it is further stated by claimant in his verification of said claim that he had been a resident of New York, and had not been in the State of California for more than two years continuously preceding the 23rd day of April, 1907, the date of such verification; that said claim was allowed against said estate and filed therein on the 25th day of June, 1907, for the amount stated in such claim."
The statute requires that "Every account must exhibit all debts which have been presented and allowed during the period embraced in the account." (Code Civ. Proc., sec. 1628.) The setting forth of the particulars of this claim, and the manner of its presentation and allowance, was certainly anexhibit of the debt thus presented and allowed. It was not at all necessary that a separate list be made of the claims allowed, as is sometimes done. The statute only requires that the debts allowed be exhibited in the account. In this case the debts were listed and fully set forth in the *223
report, which likewise set forth the amount of money received and expenses incurred and money expended. Everything done, including moneys received and expended, and expenses incurred but not paid, and debts allowed, was submitted in the form of a report to the court. The report and account, which is annexed to defendant's answer herein, purports to be "the full report and account of the administration of the estate of Margaret McLaughlin, deceased, from the commencement thereof to the 1st day of October, 1909." This particular claim and the action of the administrator and of the judge in allowing and approving it were thus presented for the final action of the court upon settlement of the account. Although the court found all matters stated in the report to be true, which includes the statement that Margaret McLaughlin had died before the maturity of the Kowalsky note, the court approved the account as rendered. This was an approval of all allowed debts exhibited with the account, and included the claim of plaintiff, which thus passed beyond attack except by an appeal from such order or other direct attack thereon. (Code Civ. Proc., secs. 473, 1737;Estate of McDougald,
The court therefore has no jurisdiction to grant the motion of the administrator to set aside the allowance of the claim, and the writ must issue as prayed for.
It is so ordered.
Cooper, P. J., and Kerrigan, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on May 13, 1910, and 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 June 13, 1910. *224