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District Court of Appeal, Second District, Division 2, California.


Civ. 10686.

Decided: February 05, 1936

Gibson, Dunn & Crutcher and Ira C. Powers, all of Los Angeles, for appellant. Elliot Gibbs, of Pasadena, for respondents.

Mrs. Cornie W. Hart died December 4, 1932. Prior to that time judgment against her and in favor of plaintiff corporation had been rendered in the superior court of Los Angeles county upon a stockholder's liability suit for the sum of $2,226.99, interest and costs. She, with other judgment debtors, had appealed to the District Court of Appeal, posting a surety company bond on appeal. While the appeal was still pending and after the death of Mrs. Hart, the surety company on the appeal bond went into receivership. Ignorant of the fact that Mrs. Hart had died and that her estate was in the course of probate, plaintiff served notice of motion to require Mrs. Hart to furnish a new undertaking on appeal. Service of this notice was made May 16, 1933, upon Fred E. Peterson, one of the attorneys for Mrs. Hart in the stockholder's liability action. At the time of such service, which was five months after Mrs. Hart's death, Mr. Peterson had qualified as one of the executors of her estate and was attorney for the executors. At that date the time had not expired within which claims against the estate might be presented.

Neither plaintiff nor its attorneys had any actual knowledge of the death of Mrs. Hart until November 6, 1933, approximately four months after the time for filing claims against her estate had expired. It then prepared and filed a creditor's claim against the estate. Thereafter, in the probate proceeding, under date of December 27, 1933, the corporation gave notice of motion for leave to file an amended claim, and on January 4, 1934, an order was entered in the probate court permitting plaintiff herein to file in the estate proceedings of Mrs. Hart “said amended creditor's claim with the same effect as though it had been filed on the date of the notice of motion referred to in said claim,” i. e., May 16, 1933. The notice of motion to which reference is made in the above quotation from the probate court's order is the motion made in the civil case then on appeal, calling upon Mrs. Hart to furnish a new undertaking on appeal. Pursuant to the permissive order of the probate court, the “amended claim” was filed, was rejected by the executors of Mrs. Hart's estate, and the within action upon such rejected claim was filed February 19, 1934.

The trial court found that plaintiff did not present its claim within the time allowed by law, and that the probate court had no authority to permit the filing of the so-called amended claim after the expiration of the statutory period. From the judgment in defendant's favor, plaintiff appeals.

Before the trial date of the within action, the District Court of Appeal affirmed the original stockholder's liability judgment (United States Gypsum Co. v. Snyder-Ashe Co., 139 Cal.App. 731, 34 P.(2d) 767), which thereby became final.

When appellant first discovered in November of 1933 that Mrs. Hart was dead and that time for filing creditors' claims against her estate had expired, it endeavored to place itself under the protection of section 707 of the Probate Code, allowing the filing of claims after the expiration of the statutory period and before the decree of distribution provided a satisfactory showing be made that the claimant has not received notice by reason of being out of the state. The issue was raised by the pleadings at the trial of the within action, wherein the court found that during all the period of time in question appellant, although a corporation organized under the laws of the state of Illinois and having its principal place of business in Chicago, Ill., nevertheless was duly authorized to transact business in the state of California, maintained an office in Los Angeles, had filed a copy of its articles of incorporation with the secretary of state, had designated a resident agent in California upon whom service of process might be made, had a force of employees in its Los Angeles office, and had sold more than $800,000 worth of merchandise in California in the year 1933. The court's conclusion that appellant was not out of the state of California in 1933, and therefore had at least constructive notice of the publication of notice to creditors in the Cornie W. Hart estate, followed irresistibly from the above findings.

If appellant has any right to maintain this action, it must be founded upon the theory that when, on May 16, 1933, it presented to Fred E. Peterson a notice of motion requiring Cornie W. Hart, then deceased, to furnish a new undertaking on appeal in the stockholder's liability case, it in effect was filing a creditor's claim informal and irregular in form though it may have been, against the estate of Cornie W. Hart, deceased. The order of the probate court permitting an “amended claim” to be filed as of date May 16, 1933, can refer only to the notice of motion in the civil case then on appeal. It is true that the attorney upon whom the notice of motion was served had been one of Mrs. Hart's attorneys in the stockholder's liability case in her lifetime, and it is true that he appeared in opposition to the motion and without any substitution of executors for the deceased judgment debtor. It is also true that at the time of receiving the notice of motion he was one of the executors of Mrs. Hart's estate and was attorney for the executors. Also, there can be no dispute that no intimation was given appellant as to the death of Mrs. Hart. Nevertheless, all these facts tending to excuse appellant's failure to file a formal claim against the estate cannot be accepted as a substitute for compliance with the requirements of sections 700 et seq. of the Probate Code, relating to the presentation of claims against estates of deceased persons. While the filing of the notice of motion in the stockholder's liability suit indicated to the executors of Mrs. Hart's estate that appellant was attempting to pursue its rights against the debtor and had not abandoned its action, it was after all a proceeding in the civil action and not, either in the contemplation of the parties or by any possible construction at a later date, to be regarded as a claim against the estate of the decedent. It lacked the supporting affidavit, the specification as to amounts due and offsets, and numerous other details required by the Probate Code.

It is true the court may, under the provisions of section 473 of the Code of Civil Procedure, allow an amendment to a claim in a proper case (Davis v. Superior Court, 35 Cal.App. 473, 170 P. 437), but the same decision is authority for the proposition that the allowance of an amendment presupposes that a claim has been filed in the estate proceedings within the time allowed by law.

Appellant's contention that the order of the probate court permitting the amendment is conclusive because no appeal was taken therefrom, and that the trial court in this case could not inquire into the facts upon which that order was based, is conclusively answered by the Supreme Court in the case of Tropico Land, etc., Co. v. Lambourn, etc., 170 Cal. 33, 148 P. 206, 210, holding that where a claim is rejected and suit brought to establish such rejected claim “the whole matter [is] at large” and the executor is entitled to contest every allegation of the claimant.

It must be held that appellant herein failed to comply with the provisions of the Probate Code (section 700 et seq., and particularly sections 705 and 709), and that therefore its claim is barred.

Judgment affirmed.

GOULD, Justice pro tem.

We concur: WOOD, Acting P. J.; McCOMB, Justice pro tem.

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