86 Cal. App. 2d 632 | Cal. Ct. App. | 1948
This is an appeal from a judgment of dismissal entered after a demurrer to plaintiff’s complaint was sustained, the plaintiff declining to amend.
By a second cause of action it is alleged: “That this plaintiff on or about the 16th day of April, 1945, filed in said estate matter, and also with Agnes Levi as General Adminstratrix, his creditors additional claim, as per vouchers attached thereto in the sum of $140.73 who thereafter admitted and acknowledged the correctness of said amount but refused to pay to this plaintiff any part thereof or claim that any part thereof had been paid or otherwise satisfied. That a final settlement of the Adminstratrix’s account and Decree of Distribution was made on August 29th, 1945 and a distribution subsequently was made without this plaintiff’s creditor claim included therein, and the said general Adminstratrix having failed to give notice to creditors as prescribed by law, which this plaintiff states herein as an issuable fact and not a conclusion of law.”
Defendant bonding company demurred upon the grounds that the complaint contained no allegation in either cause of action that the claim sued on was allowed or rejected by the adminstratrix or the probate judge as required by sections 710 and 711 of the Probate Code; that the first cause of action
It is at once apparent that the demurrer was well taken. From the first cause of action it appears that the petition to “transfer” funds was not filed until some years after the adminstratrix qualified. There is no allegation to the effect that the petition was filed or presented within the time limited by section 702 of the Probate Code after the publication of notice to creditors, nor does it appear from the first cause of action, assuming that the petition may be treated as a creditor’s claim, that suit on a rejected claim was begun within the statutory time after notice of rejection thereof. (Prob. Code, § 714.)
The demurrer is likewise well taken as to the second cause of action, for the reason that if the alleged claim was rejected suit thereon should have been brought within the time prescribed by law (Prob. Code, § 714). Treating the allegation that the administratrix “acknowledged the correctness of said amount” as an approval of the claim, there is no allegation that the claim was thereafter approved by a judge of the probate court. The allegation in the second cause of action, “and the said general administratrix having failed to give notice to creditors as prescribed by law,” is but a conclusion of the pleader. (21 Cal.Jur., § 16, p. 32.)
Further discussion of the defects of the complaint herein would be fruitless. Appellant has elected to -stand upon his complaint after being fully advised of its deficiences by the court’s ruling on the demurrer.
Because appellant is acting as his own attorney, we have been solicitous on his behalf, to the extent of examining the record of the various superior court proceedings involved. Such examination discloses that this appeal is utterly without merit. The record reveals that the alleged default of the adminsitratrix was entered by the clerk through inadvertence, the administratrix having filed an answer to which a demurrer was interposed and overruled. The erroneous entry of default was duly set aside. The claim upon which the second cause of action is based was not filed or presented until two years after publication of notice to creditors.
The judgment is affirmed.
York, P. J., and Doran, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied August 26,1948.