291 P. 871 | Cal. Ct. App. | 1930
In this action the trial court made an order sustaining a demurrer to the complaint without leave to amend, and from the judgment entered in favor of defendants pursuant to such order the plaintiff appeals.
In the first paragraph of the complaint it was alleged that James R. Carrick died intestate on January 9, 1923; that on February 8, 1923, one of the defendants above named was appointed administratrix of his estate, and that both defendants were his only heirs at law, and as such succeeded to his estate. In the second and concluding paragraph of the complaint it was alleged that "at the time of his death the said decedent was an administrator of the estate of Catherine Ross, deceased, and defendant as such in an action brought against him by plaintiff, M.J. O'Malley, in the superior court in and for the city and county of San Francisco, and in which action the said M.J. O'Malley as plaintiff therein recovered judgment for costs against said James R. Carrick. That the costs expended by said M.J. O'Malley in said action and remaining unpaid her is the sum of four hundred and fifty-three and 35/100 dollars", for which amount judgment was prayed. The grounds of the demurrer were that the complaint did not state facts sufficient to constitute a cause of action against defendants or either of them, and that the cause of action attempted to be stated therein was barred by the statute of limitations.
As will be seen from the allegations of the complaint, the plaintiff seeks to hold defendants liable for a judgment of costs rendered against James R. Carrick, as administrator of the estate of Ross, several years prior to the commencement of this action, upon the theory that being his heirs at law and having succeeded to his estate, they are liable for his debts. We are of the opinion that no such liability existed and therefore that the demurrer was properly sustained without leave to amend.
Sections
It cannot be ascertained from the allegations of the complaint whether, in rendering the judgment for costs against Carrick as administrator of the estate of Ross, the trial court exercised the authority conferred by the provisions of section
[1] But so far as the question of the liability of these defendants is concerned, it would seem to make little difference whether it be deemed that the estate of Ross or the administrator individually was liable therefor, because if the estate of Ross was liable, the judgment for the costs should have been collected from that estate, during the course of the administration thereof, in the manner provided by section
[2] Plaintiff, in support of her theory, relies to some extent on the provisions of section 1408 of the Civil Code, which reads: "Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent prescribed by the Code of Civil Procedure." But manifestly that section has no application to debts of the decedent which the law requires shall be presented to the court or to the estate's representative and paid during the course of administration.
[3] As provided in section
In view of the conclusion we have reached on the question of the liability of the defendants, it becomes unnecessary to consider or determine the other points urged by them in support of the trial court's order sustaining the demurrer.
The judgment is affirmed.
Tyler, P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 24, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 24, 1930. *524