No. 7,506 | Cal. | Jul 1, 1881
The demurrer to the answer was properly sustained.
Defendant and A. Manuel, deceased, were joint makers of the promissory note sued upon. Plaintiff presented the note to the administratrix and to the Probate Judge, by whom it was allowed as a claim against the estate of decedent. Even admitting that the rule now applies here, that a judgment against one of joint obligors merges the debt as to all, the allowance of the claim in the probate proceedings, while prima facie it determines its validity, is not conclusive as against
If, by the law of this State, a legal action can only be maintained against the survivor alone (Pomeroy, Remedial Rights, 302), the presentation to the administratrix and judge is no defense on the part of defendant. If, as in England (Id.), an original suit in equity could be maintained against tlie representatives of the estate and defendant, it is enough to say no such suit has been brought. Even if the latter remedy were the only one, the defendant here has not pleaded the nonjoinder of the administratrix. In no view, therefore, does the portion of the answer demurred to constitute a defense.
Judgment affirmed.