This action was brought by S. McLean and C. W. Evans, partners, doing business under the
As the surnames of both partners appear in the firm, name, and no part of the name is fictitious, the case seems entirely covered by the recent case of Pendleton v. Cline, 85 Cal. 142.
Whether the services were rendered during the last illness, or not, was an immaterial issue in the case. Generally, it is an easy thing to determine, the claim being recognized as a debt against the estate, whether it is or is not a preferred claim under section 1646 of the Code of Civil Procedure. In case of doubt, the administrator may refuse to pay until required by an order of the court. At last the assets must be marshaled, and the order of payment determined, by the probate court, where other creditors may be heard. Suits on claims against an estate may be brought in any court, including justices’ courts. It would be an anomaly to allow a justice of the peace, in a proceeding where other creditors could not be heard, to give a preference to one claimant over others, and enter a judgment binding on the probate court when it shall come to pass upon the relative rights of all creditors.
The judgment against the administrator can only have the effect of a claim duly allowed against the estate (Code Civ. Proc., sec. 1504), to be paid in due course, and cannot give the creditor any further rights. As already intimated, a claim may, on its face, be plainly a funeral expense, or an expense of the last sickness, and if allowed at all, manifestly a preferred claim; but there
In this case, had the administrator been satisfied that the claim was valid, though not for services rendered during the last illness, and therefore not entitled to rank as a preferred claim, his allowance would not have given it such rank, although on its face it purported to be for such services. It would still be an open question.
This being so, we do not feel called upon to consider whether the phrase “ last sickness,” in section 1643 of the Code of Civil Procedure, means services rendered in extremis, although it would seem obvious enough that it must mean something more than that, and something more than the same phrase in statutes authorizing nuncupative wills.
Section 612 of the Code of Civil Procedure, we think, justifies the action of the court in allowing the jury to take with them the claim as presented, and upon which the suit is based, when they retired to consider their verdict. Besides constituting a portion of the complaint, it was a paper which had been received in evidence. It was a matter within the discretion of the court. (Clark v. Phœnix Ins. Co., 36 Cal. 168.)
The defense asked an instruction in regard to expert testimony, in substance, that the jury were to exercise an independent judgment, giving to such evidence such weight only as they deemed it entitled to; that it did not preclude them from exercising their own judgment upon the subject, and further, it ought, like all opinion evidence, to be received with scrutiny and much caution.
We see no objection to the instruction asked, and the court might well have given it; but it does not neces
The object of the testimony was to prove the value of the medical services. The only evidence upon the subject was the expert testimony, and the statement of the doctors as to the nature of the service, the length of time, and the other circumstances of the attendance. At the request of plaintiffs, the court had already instructed the jury that they should consider these facts, and “ when they have all the facts and circumstances attending and surrounding the transaction, the opinion of experts as to value, based upon the same evidence, is not conclusive; their opinions are not to be substituted for the common sense and judgment of the jury. The purpose of their introduction is to supplement the general knowledge and experience of the jury in relation to the matters before them, and thereby to aid them in the exercise of their own judgment, to the end that a more just and accurate conclusion as to the value may be drawn from the evidence.”
This covers all the points upon which defendant asked the court to instruct the jury, except the closing admonition as to caution in receiving such evidence. This is the duty of the jury as to all evidence, and is understood, particularly so when the jury are told that they must exercise their own judgments upon the facts, independently of the opinion evidence.
The sixth instruction, asked by the defendant, was so clearly wrong that it does not merit discussion. Plainly, the jury were to find the value of the services, whether more than $150 or not.
The second instruction, given at the request of plaintiffs, is in exact accord with our ideas of the issues properly submitted to the jury.
The defendant objects to the order denying his motion for a new trial, on the ground that it was premature, as he had or was about to petition the supreme court for
If the defendant had petitioned for leave to prove an exception which had been denied by the trial court, that court ought to have granted time for that purpose. There is here, however, no evidence of such fact, or any evidence that we can notice that such application was pending. The records of this court show that an application of that character was made June 8th, and was not successful. The motion for a new trial had been denied on the previous day, after due notice.
Either party may bring such a motion to a hearing. What effect upon this order the allowance of an exception here would have had if the application had been successful, we are not called upon to say. As it has turned out, the defendant has not been injured.
We think the judgment and order should be affirmed,
Belcher, C., and Vanclief, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.