190 P. 556 | Cal. Ct. App. | 1920
Lead Opinion
This action was brought in the lifetime of James H. Blanchard to recover upon a promissory note made in favor of Samuel F. Baker, of whose estate plaintiff is the special administrator. The judgment was in favor of plaintiff, and the defendant, in his representative capacity as executor of the estate of Blanchard, appeals.
Summons in the action was not served upon Blanchard, but after his death his executor was substituted as party defendant and a claim for the amounts sued for was regularly presented to such executor. The executor allowed the claim for the principal amount of the note and interest and rejected the same as for any attorney's fees or costs. Supplemental complaint was then filed, in which the substance of the original complaint was incorporated, together with appropriate allegations showing the death of the maker of the note, the appointment of the executor, and presentation of the claim. The summons was issued upon this supplemental complaint and served upon the executor.[1] One of the points made by appellant is that he should have been served with the summons on the original complaint. However, *535
the plaintiff appears to have proceeded in strict compliance with the law in such a case, and as the supplemental complaint stated a complete cause of action in itself, there was no necessity or requirement that any other summons than that served should have been used. (Sec.
[5] By way of counterclaim, defendant charged that an attachment against the property of his testator was levied without cause or sufficient reason, and prayed for damages on that account in the sum of $1,000. By cross-complaint he asserted a charge against the estate of Baker for attorney's fees rendered by the deceased after the death of Baker and before the appointment of plaintiff as special administrator. The court properly refused to allow testimony to be given to sustain either alleged cause of action. This ruling in the first place was properly made because it was not pretended that any claim had been presented against the estate of Baker covering the matters alleged. The presentation of such a claim was a necessary prerequisite to the bringing of suit. [6] As to the attorney's fees, a further answer is suggested to the alleged cause of action made *537
by the cross-complaint, to wit: that attorney's fees are not charges directly against an estate, but are allowances made to the administrator or executor. To this point respondent citesBriggs et al. v. Breen et al.,
We find no error in the record sustaining appellant's plea for a reversal.
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.
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 July 16, 1920, and the following opinion then rendered thereon:
Addendum
The application for a hearing in this court after decision by the district court of appeal of the second appellate district, division one, is denied.
As to the refusal of the trial court to allow testimony to sustain the claim of defendant's testator for attorney's fees for services rendered in the matter of the Estate of Baker, if the services were rendered to someone authorized to bind the estate, the action of the trial court is correct, for the reason that the matter was one to be adjudicated in the pro bate proceedings.
Shaw, J., Lawlor, J., and Sloane, J., concurred. *538