*1 Savings v. Barrett. Union Bank 10, 1901.] F. [S. No. 2580. KATIE BAR- BANK, UNION Respondent, SAVINGS RETT, Executrix, etc., Appellant. Mortgage Pending — — Mortgagor of of

Foreclosure Death Suit — — An to a mort- action foreclose Abatement of Survival gage mortgagor pending of does not abate the death the the estate, suit, against but survives his estate, the of with the same effect as the mortgagor had not died. — — Complaint Appear- Statute of Limitations Amendment of of ance Executrix within Time for of Service Summons.— brought mortgagor, Where the action in time the complaint against the of after the executrix of the deceased such executrix within the three years allowed from the of commencement the action for the service limitations did not run after the com- executrix, mencement the action favor of the appear- rights of ance or of therein. Appearance. Id.—Jurisdiction over Executrix Effect of the executrix obviated the her, upon gave her, summons effect as the same the service of sum- mons. Id.—Mortgagor Lapse— not Served with Summons of One Year Bring Summons.—The cause of Power Executrix—New against mortgagor having action mortgagor, abated having executrix, was not extin- guished affected the fact that the summons person- was not ally and that served begun year prior than one death. The to continue the proceeding the executrix implied carried with it the executrix, to order new lapse J., Beatty, C. [Per in Bank denying rehearing.] from a judgment of the Superior

APPEAL Court of Alameda Judge. F. B. Ogden, County. are in the opinion facts stated the court. McFadden, and A. Boyer, Appellant.

B. having been No summons served the executrix within being at year, outlawed death, should glias could issue have been dismissed. No the executrix after the of one year. lapse executrix, must be dismissed *2 her within issued was Hart, Davis v. Proc., 7; sec. subd. (Code Civ. by 123 The executrix could not 384.) Cal. waive v. Proc., 1499; sec. Vrooman her Civ. (Code 335; Cal. Hazleton, 128 302, 306; Li Cal. Reay Po 113 v. 107.) Fisk, 110 Boycev. Nusbaumer, Respondent.

Reed & defendant, and abate the death of the by did not continue the proceeding the court The court had Proc., sec. 385.) Civ. (Code executrix. process and to be proceedings, all papers, (Hibernia conditions. etc. the changed to meet amended Wachenreuder, Society v. —Appeal from a judgment foreclosing the

THE COURT. The testatrix. action com- defendant’s was mortgage and summons was issued therein August 13,1896, menced died September The 27,1897, be- 25, 1897. June made. The of the summons was defendant service any fore executrix last will testament appointed herein was 1, 1897, and on December letters testa- of said to her. Thereafter the issued plaintiff thereon mentary setting up these complaint, facts, and the amended filed thereto March 3, 1899. Her a demurrer de- filed defendant subsequently and she filed an overruled, answer, murrer was tried, and judgment action rendered was the plaintiff. favor in her answer was the relied statute of defense Proc., secs. and in 337, 343), Civ. (Code support

limitations already that barred at contended it is thereof demurrer, and that under the provisions filed she that time Procedure the Code Civil she had no au- of section bind estate to appear, thority abate -not of the original did de action 385), Soc. Wackenreuder, and Loan Sav. (Hibernia person be who should prosecuted could personal representative. Upon appointed be thereafter the plaintiff representative, appointment such as it would against him had the to proceed same original defendant proceed died. gives Procedure to the plain

Section 581 the Code Civil tiff of an action three within the commencement summons, and de which to make return of the service and clares: all “But actions

has said or defendants been made the defendant as if summons had been issued years, in the same manner In the case present personal representative served.” years, action thus obviated of the summons. any By this service volun jurisdiction tary appearance her, with same effect as she had time, her at this that *3 after the years commencement of the action, of the or rights of the In therein, Vroomanv. Li Po more 302, than three years expired after the 581, section without any service of the sum all of mons, during which time mortgagor was living. It as the held that expired the lifetime of was, at an effect, end, and that it in the of the not administrator to revive it t, In Har Davis the plaintiff al elapse nine years to nearly making lowed any attempt and it was held to serve that although the de died before the expiration three years, the not running stopped wais thereby. is affirmed. judgment a for 11,1901, petition May rehearing

On was denied by the Bank; and Chief Justice Beatty court delivered the follow- concurring the order: ing opinion, petition C. J.—In their BEATTY, for a rehearing, counsel complain that the real grounds appellant for of their appeal in the been considered opinion affirming the judg- ment. their propositions argument

The two was addressed as follows: 1. That the be stated never having ac- Morse v. Steele. having died quired jurisdiction of Nellie Ryan, it had be- than a year after the commencement come the court to legally acquire impossible had no executrix; so, 2. her executrix That action, to revive a in the authority, by voluntary appearance against the a extinct. legally Depart-

It is true that are not met propositions these I is essential ment think the first—which opinion, on did not abate If the action case—is unsound. appellant’s it did not the death of Nellie Ryan, clearly to con- conferred power expressly car- tinue the proceeding it an to order a implied power ried new a of the first in the If this correct view party. new need not be considered. the second proposition, a rehearing. I concur in the order denying F. No. 2089. [S. EMMA McPHERSON MORSE, S. Appellant, M.

HENRY STEELE, Executrix, etc., Respondent. Rejection—Ac- Contingent Deceased Persons Claims Estates Contingent claims the es- Code.— tion— Construction meaning person are claims not of deceased tate Procedure; and an action 1498of the Code Civil section contingent claim is to be within two months *4 due, contingent If under that section. claim it becomes due, thereupon. is no action sustainable becomes never Hunt, far Fratt v. so as in- Followed. Id. Case 1498 of the Code of that section Civil Procedure is timating obiter contingent claims, to include enough its terms is mot broad not followed, contrary. being held to the rule the better claim, contingent An action —Premature rejection, months after its brought within premature, and cannot be sustained. has become Complaint. original complaint Subplemental Where the Id.— prematurely fail must rejected claim place complaint has no as a pleading supplemental brought, filing properly privilege of it refused. sustain